The home of Christmas and Hanukkah, December gives us cold weather; “visions of sugar-plums” dancing in children’s heads; the ghosts of Christmases Past, Present, and Yet To Come; and NORAD’s Santa Tracker. Even people named Ebenezer Scrooge display warm feelings of fellowship for others now seen as “fellow-passengers to the grave, and not another race of creatures bound on other journeys.” Presidents can also find themselves caught up in the Christmas spirit. If they do, they have a tool ready-made for a tenderhearted chief magistrate.
The laconic text of the Pardon Clause of Article II of the Constitution grants the President “[p]ower to grant [r]eprieves and [p]ardons for [o]ffenses against the United States, except in [c]ases of [i]mpeachment.” Like the English Crown, the President enjoys plenary authority over clemency, as the Framers and the Supreme Court of the United States have told us. Presidents may be generous, even merciful, with their clemency power, which might explain why throughout the United States’ history pardons and commutations have made their way down the chimney during the winter holidays.
Our chief magistrate’s prerogative over clemency, however, is both a blessing and a curse. A blessing because—given Congress’s size (535 members), the requirement that Congress may legislate only with bicameral agreement, and the unavoidable warp and woof of politics—Congress is entirely unsuited to make the objective, principled, and apolitical judgments that the Framers contemplated, whether at Christmastime or on July 4th. Compromise is an unavoidable practical necessity for effective action by collegial bodies, but compromise is kryptonite for avowedly partisan assemblies like today’s Congresses, because it weakens a party’s ability to blame the other for actions that it hopes that the electorate dislikes. The Framers believed that vesting responsibility in the President would best enable clemency decisions to be made wisely and expeditiously, while also ensuring governmental accountability because the public would know precisely and exclusively whom to blame.
Atop that, there are potential costs to granting a president this prerogative. There is no guarantee that presidents will make clemency decisions in good faith, focused entirely on what serves the nation’s interests, rather than their own. Presidents sometimes flunk that test, and, when they do, they can effectively avoid paying any legal or political price. No court may overturn a grant of clemency, however egregious a mistake it might be. No one may sue the President for damages over an inappropriate grant or obtain injunctive relief against future awards. Some political checks exist, but they are more hypothetical than real. In theory, Congress could impeach and remove a president for misusing his clemency power. But impeachment is only a theoretical check, given our current, highly partisan Congress, which has elevated party loyalty above the national interest. In theory, the Senate could refuse to confirm presidential nominees, but that option is not an effective response, because the President can appoint a continuing series of lower-level officers to fill upper-level positions. In theory, Congress could decline to appropriate funds for particular programs important to a president or even across the board. But the public is not likely to support defunding individual government programs that it likes, let alone general government shutdowns, however venal the President’s use of clemency might be. In theory, the media potentially could hold a president to account for corrupt or improvident decisions, and doing so might hamper a president’s re-election or adversely affect the judgment of history. But unfortunately, the days are long past when the media was willing to report about a president’s actions on an even-handed basis. Plus, while the public could refuse to re-elect a first-term president who acted in bad faith, the number and importance of other actions that he or she takes over a four-year term generally relegate clemency judgments to the same low-level significance as a baseball manager’s decision to remove a starting pitcher from a game in April. Besides, a second-term president has only history to serve as judge, and, given the age of some recent chief executives, he or she might not be around long enough to learn posterity’s lessons. With clemency, the buck truly stops with the President.
It doesn’t take an inveterate cynic to conclude that the ultimate downside of granting the President this prerogative is that the bench, bar, and public might come to believe, or even expect, that because no one can discipline a president for abusing his license, he will exploit it to benefit himself, his cronies, his interest groups, or his party. We heard that censorious outcry in response to the pardons that former Presidents Bill Clinton and Donald Trump handed out like candy as they walked out the door, and there is more than a little truth in those condemnations. If the public concludes that our chief executives exploit their prerogative for personal or partisan benefit, the public will lose respect for the rule of law and become far less willing to uphold its end of the social compact.
Unfortunately, we have recently witnessed what certainly might be another example of crass, self-interested, political chicanery. On December 2, 2022, only eight days after calling semiautomatic weapons “sick” with “no, no social redeeming value,” President Joe Biden commuted the sentence of the notorious international criminal arms merchant Viktor Bout, a former Soviet air force lieutenant colonel who was convicted in federal court for offering to sell, among other things, 700–800 surface-to-air missiles and 20,000–30,000 automatic weapons to Colombian guerillas, conduct that came atop a career of selling military weapons used to kill thousands, if not hundreds of thousands, of people.
Why did President Biden commute Bout’s sentence? To obtain the release of Brittney Griner, an American citizen and current member of the Women’s National Basketball Association (WNBA), who was imprisoned in Russia for smuggling illicit drugs. Griner was arrested at an airport near Moscow for possessing vape cartridges containing hashish oil, which is contraband under Russian law. Griner pleaded guilty to the charges and was sentenced to nine years’ imprisonment.
Yep, that was the deal: an arms-trafficking mass murderer for a basketball player.
Predictably, the exchange has proven to be highly controversial. Even President Biden’s own U.S. Department of Justice opposed the deal. Most commentators denounced the swap, a smaller number saw some value in it, and a few simply said that we shouldn’t jump to the conclusion that it was a sham. Despite the outcries, the White House has refused to admit to making a mistake, arguing that Russian Federation President Vladimir Putin would not agree to any other deal: Griner or no one—take it or leave it. Interestingly, no former president—including the three members of his own party: Jimmy Carter, Bill Clinton, and Barack Obama—rushed to President Biden’s defense after the trade (accurately, in our view) was called “madness.”
History will decide whether President Biden should have just walked away from a bad deal. That’s an important question to answer because, if his critics are right, his action will spur foreign nations and private organizations hostile to the United States to increase American hostage-taking either to advance their own interests or just to make us dance to their own tunes. This Article will help that discussion along by asking two questions: Was the exchange a lawful exercise of the President’s commutation power? If so, was it a reasonable and legitimate exercise of that authority? As explained below, our conclusions—sadly, we must add—are “Yes” and “No.” Before answering those questions, we will summarize the facts of what is probably the worst deal that any American has made since Boston Red Sox owner Harry Frazee sold George Herman “Babe” Ruth to the New York Yankees in 1920, a deal that spawned “The Curse of the Bambino”—the Red Sox’s failure to win a World Series for eighty-six years.
Nicholas Cage aficionados will remember the 2005 film Lord of War as an international procedural crime drama centering on the investigation of a fictional Ukrainian refugee-turned-international-arms-trafficker named Yuri Orlov. The movie is rumored to have been loosely based on Bout’s own infamous career. In fact, the film is, at most, a PG version of Bout’s real life.
A lieutenant colonel in the former Soviet Air Force, Bout started an airfreight business after the fall of the Soviet Union in 1991, ultimately developing a fleet of cargo aircraft able to deliver military weaponry and equipment to Africa, the Middle East, and South America. Over his career, Bout supplied a rogues’ gallery of governments and militias with massive amounts of military hardware, including guns, ammunition, and aircraft, even after the United States and United Nations had imposed arms embargoes on recipients. Those weapons were used to maim and kill thousands, sometimes on more than one side of a conflict. Principally operating in Africa—he was “the preeminent weapons provider to Africa’s dictators, warlords, rebel leaders, and terrorists”—Bout reputedly had clients such as the Liberian dictator Charles Taylor. Ostensibly acting independently of Russia, Bout was suspected of working for the GRU, a Russian military spy agency, and of pursuing the Kremlin’s aims with his arms deals. “What [Bout] was doing, he was doing with a wink and a nod from the GRU,” said Thomas Pickering, U.S. Ambassador to Russia during the Clinton Administration. Protected by the krisha—a Russian underworld term denoting “a favored tie to an official or powerful criminal benefactor who offered protection and hidden advantages”—Bout was, in Pickering’s terms, “‘an international entrepreneur. He really did not care who he was mixed up with or how.’”
The United States and the United Nations attempted to stem Bout’s arms trafficking through the use of various sanctions. For example, in 2004, the U.S. Department of the Treasury’s Office of Foreign Assets Control placed him on the Specially Designated Nationals List, which prohibits transactions between anyone so listed and any U.S. national, along with freezing any of a designee’s assets within U.S. jurisdiction. By late in the 1990s, Bout was effectively this nation’s second-most wanted criminal, behind only Osama bin Laden, who he was also accused of arming with weapons. Multiple countries and the United Nations sought his arrest and conviction.
They were eventually successful. Bout was arrested in Thailand on March 6, 2008, as the result of an undercover sting operation involving Thai and United States law enforcement authorities. Posing as representatives of rebels from the Fuerzas Armadas Revolucionarias de Colombia (viz., Revolutionary Armed Forces of Columbia, or FARC), which until 2022 had been designated as an international terrorist organization under federal law, agents of the Drug Enforcement Administration (DEA) met with Bout to purchase military weaponry, including portable surface-to-air missiles, and to receive training that could be used to kill American personnel in Colombia by shooting down American planes. Bout was indicted and convicted in the United States District Court for the Southern District of New York for committing several different federal offenses, such as conspiring to kill United States nationals, officers, and employees; conspiring to obtain and export an anti-aircraft missile system; and conspiring to provide support to an officially designated foreign terrorist organization. The district court sentenced Bout to twenty-five years’ imprisonment. He was not due to be released until 2029.
Ordinarily, presidents exercise clemency to remedy errors made in the criminal justice system. Yet, mistaken convictions and excessive punishments do not exhaust the circumstances where clemency could be appropriate. From time-to-time, the President will need to act, not as the nation’s chief executive official, responsible for ensuring that his lieutenants enforce the criminal law, but as the head of state, responsible for supervising the nation’s affairs with other members of the international community. Since antiquity, chief magistrates have treated their power to grant clemency as just another tool in the kit that he or she can use to resolve domestic turmoil, such as a civil war, or to manage international affairs, like the return of a foreign nation’s incarcerated citizens. For example, in 1795, George Washington granted amnesty to participants in the Whiskey Rebellion, a domestic revolt against federal taxes on whiskey. James Madison pardoned Jean Lafitte and the Baratarian Pirates for assisting Andrew Jackson in defeating the British at the Battle of New Orleans in the War of 1812. Abraham Lincoln commuted the death sentences of 265 Sioux tribesmen involved in an uprising to avoid appearing unduly harsh to the tribe. Lincoln later granted Confederate soldiers amnesty to encourage them to desert, while Andrew Johnson pardoned Confederate soldiers and officials to bring the South back into the fold. Other presidents have granted relief in similar circumstances.
Perhaps the most relevant international example is President John Kennedy’s decision to commute the sentence of Rudolf Abel to obtain the return of Francis Gary Powers, a U.S. Air Force pilot captured after his U-2 spy plane was shot down over the Soviet Union. Abel, a lieutenant colonel with the Komitet Gosudarstvennoy Bezopasnosti, Committee for State Security or KGB, was convicted of conspiring to commit espionage and sentenced to thirty years’ imprisonment. Powers was carrying out a very sensitive and highly important high-altitude reconnaissance mission to assist U.S. intelligence in better understanding what the Soviets were doing with their nuclear weapons programs. Captured by the Soviets, there was a clear danger in Powers being coerced or tortured into revealing national-level secrets associated with U.S. collection efforts and capabilities. In this instance, it was in the United States’ interest to go to extraordinary lengths to secure Powers’ release.
The history discussed above demonstrates a presidential custom—which is less a rule of law than it is an essential and expected rule of behavior—first adopted by Washington and continuing late into the twentieth century. Namely, when discharging his or her clemency power, or any other prerogative of the office, the President may act to protect or advance the interests of the nation or its people, and no one else. The longstanding nature of that practice is powerful evidence that it is constitutional, however misguided a particular exercise of that power might be.
The bottom line is this: regardless of how inexplicable or objectionable a particular exercise of clemency might be, the Article II Pardon Clause authorizes the President to release prisoners held in American custody to obtain the return of American prisoners or hostages held in a foreign land. Yet, answering the question whether the Griner-Bout swap was lawful does not answer the question of whether the deal was a reasonable and legitimate deal. The next part addresses that issue.
To decide whether the benefits of the exchange outweigh its costs, we would perform a standard cost-benefit analysis. We would evaluate the known and likely costs and benefits, both viewed on a short- and long-term basis, as well as estimate what, if any, additional factors we do not yet know—the “known unknowns,” to quote former Secretary of Defense Donald Rumsfeld—that might cause us to reconsider our analysis. Then, if the costs so clearly outweigh the benefits, we are entitled to ask whether the exchange was done for the ostensible legitimate reasons offered by one of the parties or was a sham done to accomplish something else that cannot be offered publicly as a justification for the exchange. First, however, we need to put the trade in its proper focus by identifying exactly what type of deal it was and why that matters.
An international prisoner swap is materially different from a private, commercial exchange, for several reasons. Those differences must frame our analysis of the costs and benefits of the trade.
First, in an exchange between two private parties—say, professional sporting team-owners— each one is free to value the costs and benefits of trading one player for another, say, a quarterback for an offensive lineman, or exchanging cash for some commodity—say, a team—regardless of what players, fans, sportswriters, or other teams might think. The owner owes no one else any duty to care for his or her interests. Of course, deals that infuriate fans or sponsors or lead sportswriters to question the owner’s sanity are not likely to have positive long-term benefits for him or her. Those factors, however, are merely ones that in fact are, and an owner should believe are, relevant to his own self-interest. An NFL owner does not owe the public a duty of promoting its interest when making a trade.
That was not true in the case of the Griner-Bout swap. Regardless of whether the President commutes an offender’s sentence so that they can be released from prison or exchanges an enemy combatant for a member of the U.S. armed forces, the President enjoys a power that only someone who holds the “Office” of “President of the United States” can exercise. More than a title comes with that job. Anyone who holds that office bears a fiduciary duty, voluntarily assumed and implicit in the oath, to act in the best interests of the nation. Such a duty does not include the best interests of his staff, party, or supporters. It also does not include the best interests of Griner, her family, or the President’s own interests. One of the reasons for public outrage when the possibility arose that then-President Donald Trump might pardon himself for any federal offenses that later could be charged against him for his in-office conduct was that he at least appeared to have used a power designed to benefit third parties and the nation purely for his own self-interest. Doing so would not have been unconstitutional, one of us has argued, but it would have been unseemly to the nth degree. The same would be true if that were the underlying rationale why President Biden agreed to this exchange.
Second, this was a deal between two parties that, at the best of times, are adversaries. These days, however, are almost the worst of times. The relations between the United States and Russia have been tense since Russia annexed the Crimean Peninsula from Ukraine in 2014, but the two nations have been uncharacteristically and openly hostile to one another since Russia invaded Ukraine on February 24, 2022. President Biden has led the member nations of the North Atlantic Treaty Organization (NATO) to isolate, sanction, and punish Russia economically for its invasion of Ukraine by refusing to trade with Russia and in other ways as well. In fact, “hostile” does not truly capture the nature of our current relationship with Putin’s Russia. As part of its efforts to help Ukraine counter the Russian invasion and prevent Russia from further westward expansion, the United States has given (or agreed to provide) Ukraine more than $75–100 billion worth of medical supplies, humanitarian aid, and sophisticated, lethal military weaponry. That materiel includes anti-ballistic and cruise-missile defense systems; howitzers and artillery-rocket systems; surface-to-air missiles; drones; helicopter gunships; and anti-tank and anti-ship missiles. On December 21, 2022, President Biden committed to providing Ukraine with additional materiel. We might do so again. Whether or not we do, Putin might think that we will, and his beliefs will affect his own conduct. Accordingly, we must anticipate potential responses that our present and future actions might have; the likelihood of their occurrence; and the risk that, like bullets, Russia’s responses once unleashed cannot be recalled.
Third, Ukrainian soldiers have used that weaponry to kill Russian troops. According to a Pentagon assessment, there were more than 100,000 Russian military casualties in the war by early November 2022, while more recent estimates have upped the number of casualties to nearly 300,000. While it is publicly unknown how many of those deaths and injuries are due to American-supplied weapons, Putin has claimed that the United States and its NATO allies are responsible for a considerable and potentially increasing loss of Russian lives.
Fourth, because that exchange of weaponry happened only with President Biden’s express approval, the exchange cannot be written off as the misguided decision of a subordinate administration official on a frolic and detour of his or her own making. Arming Ukraine is an official U.S. government-made judgment implementing Biden Administration policy and is executed, in some instances, with the consent of Congress. As such, it tells the world—including nations that wish us harm, like Russia, China, North Korea, and Iran—a great deal about the character of the nation’s president. Similarly, the government’s decision to release Bout—a villainous arms trafficker who is the world’s most wanted international criminal—to a country controlled by Vladimir Putin—an even more sinister and powerful gangster-cum-terrorist—tells those nations, and the entire world, a great deal about the United States. And what it tells them is that this president, and by implication our nation, which elected him, is weak, contradictory, and hypocritical. More on this later.
The bottom line is this: The Griner-Bout exchange was a reasonable one only if the benefits exceeded the costs for the United States and its people, not for Griner or her family, and certainly not for the President himself.
How should we describe Bout? Here are descriptions President Biden would know because senior officials in the Obama Justice Department used them when he was Vice President. Then-U.S. Attorney General Eric Holder labeled Bout as “one of the world’s most prolific arms dealers.” The then-U.S. Attorney for the Southern District of New York, Michael Garcia, said that “Viktor Bout has long been considered by the international community as one of the world’s most prolific arms traffickers . . . [who would] be prosecuted for agreeing to arm a terrorist organization, an aim of which was to kill American citizens.” Then-acting DEA Administrator Michele Loenhart said that “[w]ith the unsealing of this indictment, we are one step closer to ensuring Bout has delivered his last load of high-powered weaponry and armed his final terrorist.” It was not for nothing that Bout had been nicknamed the “Merchant of Death.”
The film Lord of War might have been based on Bout’s life, but the film does not remotely do justice to the harms for which he is responsible. If it did and did so accurately, the Motion Picture Association of America would have given it an “X” rating. The film does not purport to convey the magnitude of Bout’s damage to the world. He is responsible for the death of thousands, possibly hundreds of thousands, of real people—not actors portrayed on celluloid or in digital zeroes and ones. The film is not a live news report of the wars that Bout supported. It does not depict in real time how the soldiers he equipped, some of whom were children, used those weapons to kill, maim, and terrorize their victims. Nor is the film a documentary that reveals through archival footage the horrors those victims suffered. No, Lord of War was designed to entertain, not educate. It was put together by a Hollywood crew of directors, producers, camera crew personnel, and the like, not a United Nations team of war crimes prosecutors. That’s the undeniable truth; there’s no way around it. Griner might be a valuable addition to society and a nice person; Bout clearly isn’t either one.
Douglas Farah and Stephen Braun, authors of Merchant of Death: Money, Guns, Planes, and the Man Who Makes War Possible, a book detailing Bout’s arms dealings, explained why in detail. As they wrote, by 2008, Bout was “the preeminent figure atop the world’s multibillion-dollar contraband weapons sale, an underground commerce that is outpaced in illicit profits only by global narcotics sales.” He owned a “private air force” of more than “sixty Russian cargo planes” that, by the late 1990s, “made him the top private supplier and transporter of killing implements in a world addicted to his products.” Bout trafficked in weaponry far more dangerous than the handguns that President Biden has often labeled as useless tools of death. “The range of ordnance” that Bout sold was “staggering”: tanks, disassembled attack helicopters, surface-to-air missiles, anti-tank rocket-propelled grenades, shoulder-fired rocket launchers, land mines, mortars, artillery rounds, AK-47 automatic rifles, sniper rifles, night-vision equipment, and “millions upon millions of ammunition rounds.” “Month after month,” Bout’s arms shipments were “wielded by marauding armies of child soldiers and mercenaries.” An equal-opportunity suppler, Bout would even sell weapons to both sides of a conflict. Bout’s dealings made him a rich man. Moreover, “intelligence reports raised suspicions that Bout’s planes were also being used to supply the militant Taliban regime in Afghanistan and their patrons [Osama] bin Laden and his al-Qaeda terror network.” Lee Wolosky, an adviser to the White House National Security Council, saw “the Bout operation as the quintessential symbol of the perils of the new age”—viz., “stateless rogue organizations that offered material support to any armed camp willing to pay for their services.” Ultimately, the United States government designated Bout as “the highest-ranking international target other than Osama bin Laden and his top tier of terrorist leaders.”
Consider the effects of Bout’s operations in just one African nation, Sierra Leone.
“Easy access to weapons gave the rudimentary armies of drugged children and untrained militias the firepower to level entire societies.” Bout supplied the Revolutionary United Front (RUF), whose “battlefield advances coincided neatly with Bout’s weapons deliveries.” Those weapons enabled RUF fighters “to carry out campaigns that were as chilling and destructive as their names: ‘Operation No Living Thing’ and ‘Operation Pay Yourself,’” which were led by commanders who “dubbed themselves with equally mordant nicknames: Kill Me Quick, Superman, Poison, Mosquito, and Mosquito Killer.” Thousands of “survivors” were maimed by the RUF, which “often mocked their victims before amputating their limbs” by “asking them if they wanted to be ‘short-sleeved’ or ‘long-sleeved.’” They were relegated to living in a “den of human anguish” known as the “Amputee and War Wounded Camp” in Sierra Leone. “The luckiest victims in Sierra Leone were those who escaped the RUF’s onslaught of amputations, rapes, and torture” by “ek[ing] out a hardscrabble existence as slaves in the conflict’s diamond mines,” where they were “watched by armed guards cradling Kalashnikovs” supplied by Bout. “Large swaths of eastern and northern Sierra Leone were reduced to abandoned, barren wastelands that resembled hellish scenes out of Goya paintings.” Sadly, refugees able to escape that hell brought their irreparably damaged pasts with them. “[R]elief workers found that close to 70 percent of the women were victims of sexual assault, and the percentage was almost as high among men.” To make matters worse, Sierra Leone was not the only nation to undergo such Hadean suffering. As Farah and Braun summarized: “Bout’s Africa operations left bloody footprints across the continent. Chaos gave rise to instability. Instability bred more chaos. The results, writ large, were staggeringly bleak.”
How do we value what Bout has done for the world? How do we score his (possibly nonexistent) plusses and (beaucoup) minuses so that we can assign a number to his side of the equation? Some people, of course, would say that we cannot put a value on any one life that differs from what we would ascribe to everyone else. That opinion lies somewhere between balderdash and gibberish. Society does that all the time. The Nobel committees do it yearly when deciding who deserves the Nobel Peace Prize. Juries do it when awarding damages in tort suits or deciding whether a now-guilty offender should live or die in capital cases. Voters do it every November when deciding who should represent us in Congress, the White House, or parallel state and local offices. Insurance companies do it hundreds of times every day when placing a value on life and limb. Indeed, we all assign different values to the people we are called upon to judge, and we act upon our assignments. Yes, we disagree over the value of different individuals. But we all make value judgments, even if there is no non-arbitrary way to do so.
So here is our scoring system: if Bout receives a -1 for every person his weapons killed, a -0.75 for everyone his weapons maimed, and a -0.5 for everybody who lost a family member to Bout’s business, was rendered homeless, or has been left suffering daily feelings of terror and PTSD from what Bout did, Bout surely is (at least) one million points in the hole.
That’s Bout. What about Griner, the person on the other side of the equation? How does she rate? When making that judgment, we need to use the same scale. Let’s give Griner a +1 for every life that she has saved, a +0.75 for every grievously injured person she has helped recover, and a +0.5 for everyone who sees her as a valuable entertainer, icon, and role model.
What is Griner’s score? Although impossible to calculate precisely, the number is not remotely large enough to offset Bout’s horrific total.
Start with what Griner does. She is an American professional athlete, a star in fact. She twice has won an Olympic gold medal for women’s basketball, and she has been a WNBA all-star six times. Perhaps she is one of the WNBA’s best players, today or all-time. Maybe she is Michael Jordan without a Y-chromosome. But, however brightly her star might burn, she’s just a professional athlete. That is, she is an entertainer, no different than Tom Brady, Anthony Hopkins, Idina Menzel, or Aretha Franklin. She is not a Gary Powers, a U.S. Air Force pilot captured after his spy plane was shot down over the Soviet Union on a mission he was ordered to carry out. Powers took on the responsibility of putting his life at risk to protect people he never knew and who never thanked him. Nor is Griner an Aleksandr Solzhenitsyn or Natan Sharansky, famous political dissidents held in Soviet Gulag-managed forced labor camps for having the effrontery to criticize the wretched excesses of Soviet Marxism. Nor is she the equivalent of a Yulia Paevska, a medic who treated and evacuated the wounded during Russia’s siege of Mariupol, Ukraine, who now is in Russian custody. Finally, Griner is not an oncologist, cardiac surgeon, transplant specialist, or biomedical researcher, someone who might never put his or her life at risk for others, but whose release would save hundreds, perhaps thousands, of lives. Griner’s not even an Emergency Medical Technician, let alone a military corpsman or medic, who can treat life-threatening injuries and transfer someone in extremis to a hospital ER to be saved and repaired. And don’t even try to compare her to someone like Mother Theresa, a person who dedicated her life to caring for the injured and ill while living in one of the world’s worst slums.
Some will respond that it is impermissible to say that Griner does not have the same value as any of those people. They would say that every life has infinite value, regardless of what someone does with it, so the value of her life cannot be scored as if it were one of her WNBA games. God might believe that every life is sacred and possessed of infinite value, but this judgment is ours to make, not His, and we must make human value judgments, not divine ones, especially when they pertain to matters of national interest. Otherwise, the U.S. government would be in the business of arranging swaps for an untold number of American citizens believed to be “wrongly detained” by a foreign government. Plus, repeating the mantra that all lives possess equal worth doesn’t make it true. Nor does media attention translate into social value. Professional athletes, regardless of their sport or their success in it, simply provide entertainment. Pele, the world-renowned Brazilian soccer player and unofficial global envoy for the beautiful game, was a towering figure, but was also just an entertainer. Besides, Griner is no Pele. To be sure, providing entertainment is a legitimate endeavor and worthwhile product. But hitting a three-pointer is not tantamount to saving a life. Want proof? Just watch any episode of Access Hollywood and count the number of vignettes devoted to the life-saving work of movie, television, or stage actors.
Of course, maybe we’re wrong. Not being devotees of People magazine, we could have missed someone. If so, point to someone who is alive today because of what Griner did on a basketball court. Just one person. Surely the White House would have done so if that evidence were available. The president did not, however, which suggests that the evidence just isn’t there to support that defense or that such a defense wasn’t even a considered factor in his valuation of Griner to justify securing her release. The upshot is that there are more graves attributable to Bout than there are people who can fog up a mirror only because of anything that Griner has done.
Maybe Griner can make up for her poor life-saving score by totaling a gazillion points for helping the physically crippled or mentally distressed. If so, again, no one has assembled the evidence necessary to make that case. The absence of proof is not equivalent to proof of its absence, but the White House had been negotiating for Griner’s release for months. If there had been such evidence available, the Biden Administration would have released it once it saw the blowback from trading a mass murderer for a basketball player. The White House didn’t, however, which suggests that the evidence just isn’t there to support that defense.
Now turn to the external costs that this trade inflicts on or poses for the nation, whose interests a president is supposed to protect and advance. Remember, the Phoenix Mercury did not receive Bout from a trade with another WNBA team. President Biden exercised his Article II power to make a deal with Russia for Griner’s return, which means that we must consider the effect of the deal on the nation as a whole. A consequence is that the swap exposes other Americans to the same type of conduct that we saw here. Travelers to Russia, China, Iran, or other nations hostile to the United States now know what the Biden Administration might do when one of its favored sons or daughters is held captive, at least when the American is a celebrity or a member of one of the President’s favored constituencies. Robert Zachariasiewicz, a former DEA agent involved in the Bout case, put it well: “We just showed that it is really useful to have an American in your back pocket because you never know when you need them to trade.”
More important is what conclusions our enemies will draw from this trade. What Putin, Xi Jinping, Kim Jong-un, and Ali Khamenei are likely to take away from this incident, rightly or wrongly, is that the United States is weak and can be easily manipulated by exploiting the political interests of the current occupant of the White House. The nation treated as equals (1) a mass murderer that members of the Obama Administration were glad to see in American custody because he was willing to kill Americans, that members of the Biden Administration’s own Justice Department wanted to remain locked up, and that none of the nation’s still-living former Presidents—even ones in President Biden’s party—thought should be set free; and (2) a basketball player. Griner is female, black, and a lesbian. None of those factors justifies letting her rot in a Russian labor camp, but none of them—nor all three of them—justifies releasing Bout. Yet they might be relevant to the lessons that Putin and others take away from this exchange. They might well conclude that President Biden is manipulable. Why? Because he is so focused on attaining his place in history and so in hock to certain interest groups that he was unwilling to bear their disapproval if he had walked away from the deal.
Predators sense and feed on weakness. If Russia, China, North Korea, and Iran conclude that President Biden’s action displays a lack of resolve because he was unwilling to bear the domestic cost of leaving Griner in prison, the nation is the worse for it. The decisions made by foreign leaders certainly turn on more than simple schoolyard rules, but they are not irrelevant. The appearance of weakness on a playground or in a conference room invites aggression. That is no less true today than it was in 1938; President John F. Kennedy, a World War II combat veteran who was personally familiar with the tragic results that appeasement encourages, acknowledged as much in 1961, saying that, “We dare not tempt them [viz., potential adversaries] with weakness. For only when our arms are sufficient beyond doubt can we be certain beyond doubt that they will never be employed.” Sufficient arms matter for little, however, if we lack the will to use them and to bear the cost of doing so. In global relations as in schoolyard affairs, actual strength and the appearance of strength matter. Let other nations or individuals draw the conclusion that you can’t stomach verbal criticism by your friends and allies—or the loss of their political support—and you might soon face physical conflict with your opponents and enemies.
The Griner-Bout deal also does not stand alone. It comes atop our disastrous 2021 pullout from the Afghanistan War. Together, those events certainly encourage Putin to believe that President Biden has abandoned this nation’s one-time assurance to the free world that the United States will “bear any burden, pay any price” to preserve liberty. President John F. Kennedy gave the world that pledge six-plus decades ago in the face of older threats posed by a no less sinister senior Russian official, Nikita Khrushchev. Letting Putin and our other enemies conclude that our chief executive lacks the courage to withstand criticism from disappointed domestic interest groups calling on him to obtain Griner’s release only leads our foes to believe that our President is unwilling to “bear any burden, pay any price, meet any hardship, support any friend, oppose any foe to assure the survival and the success of liberty.”
Some commentators have maintained that the deal was a reasonable one because the charges were bogus, cannabis oil is not a dangerous drug, and the punishment was unduly severe. Even if those claims were true, they are irrelevant. Griner has not denied possessing cannabis oil while in Russia. It is also irrelevant that numerous states in this country have legalized cannabis for medical or recreational purposes and the remainder do not treat her crime as a serious offense. Griner was not in this country when she arrested. She was in a foreign nation, which has authority to decide what is and is not lawful within its borders and what drugs are “safe” and “effective” regardless of what California does. As for the severity of Griner’s punishment with the penalties imposed on drug possession in this nation: American constitutional law does not cap the term of imprisonment that can be imposed for the crime of drug possession, even if the drug is cannabis; just ask Roger Davis. Besides, looking at what an American court should or would have done in Griner’s case is merely an attempt to avoid the issue. The issue is not whether a court—let alone an American court—should have ordered Griner released because Russia contrived this entire affair to allow Putin to embarrass President Biden before the nation and his supporters. No, the issue is whether an American president should have traded Bout for Griner and whether the deal benefitted the nation as a whole. Further, in deciding to swap Bout for Griner, Biden must have concluded that the presumed injustice dealt to Griner for the relatively minor sin (in U.S. eyes) of transporting an illicit substance into Russia (that clearly prohibited such) rose to a level that justified the release of a mass murderer, Bout. If this was the case, such a conclusion does not just strain credulity, it blasts it as thoroughly as one of Bout’s bombs did innocent women and children in some far-off hellscape in Africa.
It is no argument that the United States and other nations have released multiple prisoners in exchange for a smaller number of Americans. What matters is not the number of American prisoners that return to the United States and the number of foreign prisoners held by the U.S. that are released to the world, but the overall benefit of the exchange for this nation. Like plea bargains, charging decisions, and clemency grants, each prisoner exchange is separate and independent of its predecessors and therefore must be analyzed on its own terms. Plus, President Biden approved the Griner-Bout exchange—he signed the commutation warrant—so decisions made by other presidents are utterly irrelevant to the legitimacy of this one.
Believing that the best defense is a good offense, a few of the Griner-Bout trade’s defenders have resorted to a tactic that is becoming increasingly popular these days to fend off opposition by labeling as “racist” (or “homophobic” or “misogynistic”) anyone who criticizes the exchange. That claim is not as much a defense of the swap as it is an attempt to silence critics by tarring them with one of today’s most toxic labels. What proves that statements like those are just political cheap shots is that thousands upon thousands of Bout’s victims lived and died in Africa, and, like Griner, were black. Farah and Braun explained that point in detail. “Africa’s guerilla armies and local warlords” were some of the world’s “most infamous and dangerous transnational threat[s,]” Farah and Braun conclude, because they were responsible for “seizing control of large swaths of territory, terrorizing and killing thousands for private gain, and leaving millions of survivors homeless and destitute.” To top it off, Bout was apparently a racist himself. Accordingly, if race were a legitimate factor for President Biden to consider (and we think that it wasn’t), Griner still comes up short.
Nor can the exchange be justified on the ground that Griner is a woman or is gay. Sex-based governmental classifications are legitimate only if there is an “exceedingly persuasive justification” for doing so. The administration did not even attempt to defend this deal on either of those grounds, even though the latter one is likely one of several “intersectional” reasons why the President approved the exchange. Since his first day as president, Biden has quite visibly sought to champion and cater to the interests of the groups who advocated for Griner’s release. Perhaps he sees himself as a twenty-first century LBJ for those parties. Whatever his motivation was, President Biden has not defended the swap as a form of justifiable affirmative action for those communities, although the White House spokesperson gave that rationale her personal endorsement.
The bottom line is this: just as no American president should have traded an arms merchant like Bout for Billie Holiday, Babe Ruth, Jesse Owens, or Robin Williams because the deal would not have been worth it, the President serving today should not have traded Bout for Griner. Consider the views of a Justice Department official (who spoke under a condition of anonymity, for obvious reasons): “If she were my relative, I would want to do the swap,” he said—before adding, “[b]ut trading a notorious international arms dealer for a basketball player is madness.” Indeed. Then-President Obama should have sent Bout to the Château d’If and not told anyone where Bout was until he was due to be released. The world would be a better place with him still there, even if that meant Griner would remain imprisoned.
There is one inquiry left to make: namely, was this trade, though legal, a legitimate exercise of the president’s clemency power? Put differently, did President Biden act for a bona fide reason when he traded Bout for Griner? Were his intent and motive above board?
Ordinarily, the intent or good faith of the parties to an exchange is either superfluous—because each side is presumed to act in its own best interests—or irrelevant—because the benefits and losses are the same whatever each party’s intent might be. That is true even when one side certainly benefits more than the other. Negotiation is a skill, and some parties are better at it than others.
Some deals, however, are clearly so one-sided that they give us pause. Had the New England Patriots traded Tom Brady in his prime for an aging, second-string, offensive lineman used only on special-teams, sports writers would not have been the only ones shaking their heads. A deal that one-sided raises the question, “What gives?” Were one party’s negotiators (or their superiors) incompetent? Were they (again, or their superiors) corrupt—that is, were they bribed? Even if there was no quid pro quo, was the deal merely a charade? That is, to use an analogy apt in these circumstances, was it like a Potemkin Village or a Soviet show trial, a performance put on merely to give the appearance of a serious, legitimate exchange or production, but that in reality was merely a façade created to disguise its underlying purpose and the motivation of one of more parties? Said differently, an unreasonable deal forces us to ask how presumptively competent and honest representatives for one side of a deal (or their superiors, who were ultimately calling the shots) could have botched their task so badly. Was it because they were so devoutly committed to making a deal, even a demonstrably bad one, or that they were under orders not to walk away from a clearly bad agreement, that they accepted whatever offer the other side was willing to make? If so, their later-offered rationale for the exchange and their evaluation of its benefits are not worthy of belief. And if that is true, then we have to ask this question: Is the losing party to this type of exchange utterly incompetent, an abject liar, or non-compos mentis?
The Griner-Bout swap raises those questions.
Here, Griner was not the only American held in Russian custody. At least three Americans—Paul Whelan, Marc Fogel, and Sarah Krivanek—were in a Russian prison, and the first two remain there. The question arises: why did the Biden Administration obtain Griner’s release but not theirs? Biden Administration officials claimed that they sought the release of Whelan along with Griner, but the Russians limited the offer to Griner. Administration officials have also said that they are working to obtain the release of other Americans in Russian custody. Maybe those claims are true; there are insufficient publicly available facts to know. But keep the following two points in mind:
The first one is that the Biden Administration has not explained why it was reasonable to exchange Bout for any American held in Russian custody or even all of them. Said differently, the real question here is not whether Russia snookered the United States into releasing Griner for Bout, but why the United States released Bout at all. Aside from the number of graves already attributable to his work, consider this: the recidivism rate for recently released enemy combatants is frighteningly high, and they are potential future clients for Bout. Is there no one whom the Biden Administration would deem so heinous, predacious, and wicked a criminal that it would never consider his or her release? Or does the value of satisfying the President’s favored constituents outweigh the benefits to all Americans—and, in cases like Bout’s, the world—from protecting innocent people against murder and maiming? Or do the lives of innocent non-voters not matter to this president for that very reason? Given the number of lives already lost because of Bout’s dealings, those questions answer themselves.
Yes, Bout would have been released eventually. Plus, in economic terms, he was a “wasting asset”—that is, his exchange value would decrease over time. But two facts are certain: Bout is responsible for thousands and thousands of deaths, and he could not add to that list while he remained in an American prison. Back in Russia, Bout is now able to resume his old profession. As a practical matter, Bout might not be able to leave Russia, but he can negotiate deals via cell phone or Zoom from the comfort of whatever home he has there. Besides, neither American law nor the terms of his commutation prohibit his associates from traveling whenever someone needs to “press the flesh” to finalize a deal or supervise the distribution of military hardware. Even if Bout’s old clients are no longer looking for his products, Bout likely could find new ones in places such as Syria, Yemen, or elsewhere. That will hardly benefit the people in foreign countries who wind up on the receiving end of Bout’s hardware. If Bout returns to his evil ways, he will be just the latest in a series of bad prisoner trades our chief executives have made.
That raises the second point. As argued above, presidents should agree to international prisoner exchanges only when the nation benefits from them. Here, the facts establish more than a reasonable suspicion that President Biden’s decision was motivated by a desire to advance his party’s interests, not the nation’s, by satisfying certain political constituencies that he has championed since becoming president. While claiming that she was speaking only “as a personal matter,” White House Press Secretary Karine Jean-Pierre almost conceded that the administration saw the deal as a benefit for several of the constituencies whose interests it has tried to advance since January 20, 2021. That is quite troubling. It is one thing to hand out funds to a favored group; it is another to place the nation’s security at risk by favoring a particular domestic constituency. That appears to be what happened here.
The timing of the Griner-Bout exchange certainly supports the conclusion that domestic party politics were on President Biden’s mind. The 2022 congressional elections were held on November 8, 2022. In Georgia, neither candidate obtained a majority of the votes for one of its U.S. Senate offices, and state law required a runoff to decide the matter. The runoff was held on December 6, four days after President Biden had signed the Bout clemency warrant. The Biden Administration kept the deal under wraps until the Georgia runoff had been concluded, perhaps to avoid influencing the decision by Georgia. By itself, the timing of the exchange raises at least a “reasonable suspicion” that domestic politics influenced the president’s actions. Add in the fact that President Biden let the deal go forward during the Christmas season, when Americans are more interested in the whereabouts of Kris Kringle than Brittney Griner or Viktor Bout and are less likely to rebel at what appears to be a political payoff than a reasoned trade. By January most would have treated the affair as old news. The timing of this deal adds an additional fetor to it.
Viewed objectively, the Griner-Bout swap is a scandal. If a reasonable case could be made for it, the Biden Administration has not made it. In all likelihood, none could be made.
The Griner-Bout swap was not a mayor’s attempt to pacify local unions and achieve municipal peace by giving police, fire, and sanitation unions a better contract than they deserved. It was not even a presidential decision to resolve a negotiation between the railroad or automobile industry and its employees’ union by favoring one side or the other. It was a trade between nations with important foreign policy and national security implications. The message that nations who wish us harm will take from the Griner-Bout swap is this: the United States (or at least its current president) deems it more valuable to return a basketball player to the WNBA than to prevent, even if only for a few more years, worldwide damage that the globe’s worst arms-trafficking criminal can wreak. That conclusion reflects a judgment about the character of the man who approved the deal—and it’s not one benefitting our nation. A man who never wore a uniform, who never placed his own life at risk to protect the lives of others, is so willing to satisfy his favored interest groups, so afraid of angering or disappointing them, or so lacking intestinal fortitude and a moral compass that he approved a deal that any reasonable person knows he should have walked away from because of the risks it poses to the nation’s security and well-being. All that by a man who so wants to please his favored constituencies and be known in history as an important president that he is willing to place at risk the lives of Americans.
It is likely that President Biden was banking on the public’s historic willingness to treat December events as old news once January rolled around. If so, his instincts might have proved right. Maybe Americans became preoccupied with the Super Bowl, March Madness, Major League Baseball’s reopening, the arrival of spring, and everything else that has occurred or will occur in 2023 that they will forget about this matter. Even if not, maybe they won’t find it worth their time to criticize this deal, now or later. Perhaps that is because they have become so inured to presidential abuses of power, regardless of who is in office, that they believe Roger Daltrey was right: the new boss is the same as the old boss. Perhaps they will throw up their hands because they know that, in the short run, nothing they say or do could make any difference. After all, unlike prime ministers, presidents can’t be removed through “no confidence” votes, and November 2024 seems light-years away.
But forgetting about or ignoring this deal won’t make it a good one. The swap might have bolstered President Biden’s support among his political allies, but it weakened the nation. We are worse off for it. Shame on him.
The views expressed in this Article are our own and should not be construed as representing any official position of The Heritage Foundation. We want to thank James Jay Carafano, John G. Malcolm, Thomas Spoehr, and Cully Stimson for invaluable comments on an earlier version of this Article. Any mistakes are ours.
