Gov. Glenn Youngkin, who has been sparing when it comes to issuing pardons, last week gave one that immediately became a political lighting rod — which critics say is exactly what he intended.
The pardon in question was for Scott Smith, the Loudoun County parent who was arrested at a school board meeting and charged with disorderly conduct and obstruction of justice when he got into a verbal confrontation with others at the meeting. The details of that event are tied up in the controversy over transgender students and restrooms, complicated by the fact that Smith’s daughter had been sexually assaulted at school.
“The case drew national attention at a time of intense political polarization in education, becoming entangled in debates over transgender issues because the student was wearing a skirt when he assaulted Smith’s daughter in a school bathroom,” The Washington Post says. (Loudoun County’s Commonwealth’s Attorney Buta Biberaj has said the student was neither transgender nor gender fluid.) The case “also infuriated community members who questioned why the student was transferred to another school after the incident; within months, he assaulted another girl at the new school,” the Post says.
All this became an issue in the 2021 gubernatorial campaign — part of Youngkin’s “parental rights” message — and has continued since then in various formats.
“A state grand jury report denounced the school system for its handling of two sexual assaults by the student,” the Post reports. “That investigation, launched by Youngkin and Attorney General Jason Miyares (R) as one of their first acts in office, concluded that school administrators bungled the response to sexual assaults in May and October 2021 … The report found that the school district’s superintendent, Scott Ziegler, lied about the first incident during a school board meeting, denying that there had been a sexual assault in a school bathroom even though he knew an assault had been reported. Ziegler, who has previously said that he misunderstood the question at the board meeting, and has apologized for the handling of the incidents, was fired in December shortly after the report was released.”
Meanwhile, the legal case against Smith ground on, with other fireworks. The judge appointed a new prosecutor; the obstruction case was dismissed; Smith was convicted of disorderly conduct in general district court and then appealed to circuit court.
All that is by way of background for the benefit of those readers for whom these events in Loudoun County are quite distant, either geographically or culturally — although, to the extent that all this helps fuel the parental rights movement, what happened in Loudoun has implications statewide.
Today, Paul Harvey-style, we’ll deal with the rest of the story. One point of interest for those of us in Southwest and Southside is that one of Smith’s attorneys is from Moneta — better known to us as state Sen. Bill Stanley, R-Franklin County, a colorful figure who has his own podcast and auto racing team. (See my previous column about those.)
How did a high-profile client from Northern Virginia wind up with a lawyer from Franklin County? Stanley says the case came through a referral and points out that most of his legal work is outside Franklin County. He does enough business elsewhere that he now has an office in downtown Richmond, so we shouldn’t be too surprised he wound up with this case. He’s currently prepping for a December trial in Greensville County over whether the state’s attempt to ban so-called “skill games” is unconstitutional (he’s on the pro-skill games side).
There’s been much political chatter that Youngkin’s timing of the pardon was politically motivated, designed to stir up the Republican base a few weeks before early voting begins in the General Assembly elections. Undoubtedly, there is some political benefit for Youngkin here. Smith has been something of a martyr to some Republicans, and anything that calls attention to the governor’s views on parental rights is likely to energize the party base. That’s no doubt why Loudoun County Commonwealth’s Attorney Buta Biberaj has called the pardon “a political stunt.”
You can judge for yourself the politics of the matter but the timing wasn’t the governor’s choosing, Stanley says. He says that the governor’s office first raised the prospect of a pardon in early summer and that the reason for the delay was that his client was initially resistant to the idea — he wanted to go to trial, a trial that was scheduled for later this month. “If Scott had said yes in June or July it would have been done in June or July,” Stanley tells me.
Youngkin’s statement on pardon
“Scott Smith is a dedicated parent who’s faced unwarranted charges in his pursuit to protect his daughter. Scott’s commitment to his child despite the immense obstacles is emblematic of the parental empowerment movement that started in Virginia. In Virginia, parents matter and my resolve to empower parents [is] unwavering. A parent’s fundamental right to be involved in their child’s education, upbringing, and care should never be undermined by bureaucracy, school divisions or the state. I am pleased to grant Scott Smith this pardon and help him and his family put this injustice behind them once and for all.”
He says Scott “politely declined” the governor’s initial offer because he wanted to be exonerated in court. “We were not inclined to do that [accept the pardon] because of our confidence in the case,” Stanley says. “We’d been chomping at the bit to go to trial — we wanted to go to trial. It’s like taking the balloon away from the kid.”
Based on what I’ve seen of Stanley over the years, I can believe that. He relishes legal combat. A story years ago in The Roanoke Times said he “dismantled” Franklin County’s noise ordinance when he represented a bar owner at Smith Mountain Lake who was charged with booking noisy bands. One of his most famous cases came years ago when he represented an indie band from New Jersey — Scream! Hello — that had two members charged with mooning drivers on Interstate 81. The question became which band member had actually presented his posterior for viewing. Stanley suggested to the judge that the only sure way to resolve the identification issue was to have the band members drop trou in court so that the witness could identify the offending derriere. The judge was not amused but the case was dismissed.
After Smith initially declined the offer of a pardon, the governor’s office persisted, Stanley says. “It was made very clear through representatives of the governor that the governor felt strongly. … I spent many hours on the phone with Scott — to pardon or not to pardon. It was really about convincing Scott.”
Stanley’s statement on the pardon
This was issued by Stanley and fellow attorney Mike Joynes:
“Today, the Governor declared by his absolute pardon what we already knew – that Scott Smith is an innocent man who was wrongfully and unjustly arrested & charged. Because Scott dared to stand up for his daughter, and courageously stood up for all parents of children in the public school system, he was attacked by those who pushed radical school policies over the protection of students, he was vilified by the media, and he was outrageously branded a “domestic terrorist” by those who believed that parents should not have a say in the education of their children. While we did not seek a pardon from Governor Youngkin, and while we were very confident that we would have been able to prove that Scott Smith was innocent of the criminal charges placed against him if the matter had gone to trial, we are nevertheless grateful that the Governor also recognized the wrong done to Scott Smith by the judicial system, and that he has now taken this bold action to right that wrong by this pardon. His declaration that Scott Smith was “factually innocent” of the charges is vindication for Scott Smith, his family, and for all parents who stand up against the government’s attempt to enact a radical agenda that is obsessed on teaching their children “what to think,” rather than focusing on teaching children the critical lessons they need to learn in order to be successful later in life. We are proud of Scott Smith for standing up to the government’s overreach, and believe that this is the right and proper result for Scott and his family.”
Part of what made the difference, Stanley says, is the way the governor’s pardon is worded. Here’s a quick legal lesson.
There are actually three types of pardons in Virginia.
A simple pardon “is a statement of official forgiveness,” according to the language on the state’s website. It does not wipe away the conviction, it merely forgives the offender.
A conditional pardon changes the terms of a sentence imposed by the court. They are rare, and generally used in cases where an inmate faces a terminal illness.
An absolute pardon “may be granted when the Governor is convinced that the petitioner is innocent of the charge for which he or she was convicted,” the state’s website says.
According to the Collateral Consequences Resource Center, a nonprofit group that tracks the restrictions on people who have served their sentences, Ralph Northam issued more than 1,200 simple pardons during his four years as governor. According to an annual report filed by the Youngkin administration, Youngkin issued just 24 simple pardons his first year in office, and one conditional pardon to an inmate from Norfolk in need of a lung transplant.
Northam issued nine absolute pardons; the one for Smith is the only one Youngkin has signed so far.
As is the nature of absolute pardons, this one doesn’t just do away with Smith’s conviction, it declares his “factual innocence” and does so in more declarative language than was used in Northam’s absolute pardons.
Stanley says the fact that it was an absolute pardon, and not a lesser version, “was what convinced Scott” to accept the offer. “That’s as equally good as me winning in court,” Stanley says.
Since the pardon, I’ve heard it suggested that Youngkin’s pardon may have exceeded his constitutional authority. The state constitution gives the governor the power to grant pardons “after conviction.” Here, Smith was convicted in general district court but had appealed to circuit court. According to the state’s judicial website, “appeals from these district courts are heard de novo; that is, the cases are tried from the beginning as though there had been no prior trial.” De novo is a Latin term meaning, basically, “anew.” That’s different from an appeal to the Virginia Court of Appeals or the Supreme Court, where a conviction is in place and the purpose of an appeal is to get the appellate court to reverse it. If we hold to that de novo rule, then there is no conviction so the pardon can’t be “after conviction.” At least that’s how it’s been put to me by those critical of the governor’s decision (those critics also weren’t keen to speak on the record, either).
The prosecutor’s statement
Loudoun County Commonwealth’s Attorney Buta Biberaj released the following statement:
“This political stunt by Governor Youngkin is an unprecedented and inappropriate intervention into an active legal case. He chose to interfere in the legal process but not for justice but for political gain. If the Governor truly believed that the evidence would show that the Republican sheriff lied about the facts and wrongfully arrested Smith, that the Magistrate wrongfully issued the arrest warrants, and that the Republican Special Prosecutor was wrongfully prosecuting him, Youngkin would have permitted the case to go to trial and let the truth be told. That is the system in America. The justice system does not work when a Governor becomes the judge and jury.“
When dealing with the U.S. Constitution, we can only guess at what James Madison and the other founders meant. When dealing with the Virginia constitution, though, we can talk to the so-called “Father of the Virgina Constitution” himself. A.E. Dick Howard is a law professor at the University of Virginia and was executive director of the state commission that rewrote the state’s fundamental law, which went into effect in 1971. Howard is also author of “Commentaries on the Constitution of Virginia,” in which he points out that the “after conviction” phrase first appeared in Virginia’s 1851 constitution specifically to ban “prospective reprieves and pardons.” If the appeal to circuit court is really starting from scratch, is this such a banned “prospective” pardon?
Howard says no. “The Governor can be criticized for substituting his judgment for that of the triers of fact in this case,” he tells me via email. “But, as there had been a conviction, he did not act beyond his pardoning power under the Constitution.” (Sorry, Democrats.)
Still, it’s unusual for a pardon to come at this stage — Biberaj calls it “unprecedented and inappropriate.” The state’s FAQ page on pardons says that absolute pardons should only come after the defendant has “exhausted all forms of judicial appeals and other remedies, including a Writ of Actual Innocence.” That’s why Biberaj says, “If the Governor truly believed that the evidence would show that the Republican sheriff lied about the facts and wrongfully arrested Smith, that the Magistrate wrongfully issued the arrest warrants, and that the Republican Special Prosecutor was wrongfully prosecuting him, Youngkin would have permitted the case to go to trial and let the truth be told. That is the system in America. The justice system does not work when a Governor becomes the judge and jury.” Youngkin takes the point of view that “we righted a wrong here,” as he put it on Fox News on Sunday. “He should have never been prosecuted here. This was a dad standing up for his daughter.”
In the absolute pardons that Northam issued, the court cases had all happened some years before — sometimes a decade or more. In some cases, the person in question had already served their time and been released. However, Henry Chambers, a law professor at the University of Richmond, says that if the governor truly believes Smith is innocent, then he was right to issue the pardon before the circuit court case was heard. “Given that, the pardon is not surprising and arguably should have been granted before appeals are exhausted (during which the state and the defendant would spend significant resources),” he tells me. “Whether Mr. Smith really is factually innocent is, of course, a different issue.”
While the criminal case against Smith is done, other legal action stemming from what happened isn’t. Stanley says he soon expects to file a lawsuit in federal court against Loudoun County schools. The Franklin County connection to Loudoun County will apparently continue for a while more.