The Case for Pardoning Trump

Former President Trump disembarks Air Force One. (Trump White House Photo) James Comey, the former FBI director who was corruptly fired by President Trump in 2017, suggests that President Biden should strongly consider pardoning Trump. The Boston Herald’s editorial board and columnist Jay Evensen of The Deseret News, among other media voices, have made the same suggestion. As of now, however, the idea has not achieved enough visibility to be considered mainstream, and there is no sign that Biden is considering it. That should change. Though the case for pardoning Trump is not open and shut, the arguments in favor are many and strong. The kind of pardon we’re talking about should cover only federal crimes that Trump committed in his capacity as president. It would not cover crimes he committed as a private citizen, including during the presidential campaign; crimes committed by the Trump Organization or the Trump family; or crimes committed by Trump himself after noon on Jan. 20, 2021. Nor, obviously, would it cover any state crimes that Trump might have committed. Trump would also need to accept the pardon. He would undoubtedly try to spin the pardon as demonstrating his innocence, not his guilt, but both custom and law generally regard acceptance of a pardon as an admission of wrongdoing. (Some observers speculate that, for that reason, he might reject a pardon.) And what would the pardon be for? Well, everything. Biden should issue it preemptively and in blanket terms, not waiting for any legal process to unfold. The goal would be to take criminal prosecution off the table and remove it as a sword of Damocles hanging not only over Trump but also over Biden’s presidency and the country. The strongest argument against a pardon is the simplest: that no one is above the law, least of all a president, and that giving a safe-conduct to the most corrupt president of our lifetime (and probably ever) violates basic norms of justice and intuitions about fairness. The second strongest argument is that a preemptive pardon is a pig in a poke: Until we know what crimes Trump might actually be charged with—knowledge that will not come until prosecutors dig into the case—it would be foolish to let him off the hook. The pig-in-a-poke argument is actually pretty easy to deal with. Trump is nothing if not obvious about his transgressions. In fact, his trademark innovation as president was to weaponize flagrance, bragging about his misdeeds in order to get cover from his supporters. If he committed crimes that we don’t already know about, they are probably not of a new kind or magnitude. As for what we do know about, it seems clear that he committed criminal obstruction of justice, for example by ordering his White House counsel to falsify federal records . But his obstruction was a process crime, already aired, of limited concern to the public and hard to get a conviction on as a stand-alone charge. There might be more to the Ukraine scandal than we know, but that matter, too, has been aired extensively, may not have been a legal violation and was appropriately (if disappointingly) handled by impeachment. Trump might have committed some form of sedition when he summoned his supporters to the streets to overturn the election, but he would have a colorable First Amendment defense, and sedition is a complicated and controversial charge that would open a legal can of worms. The real problem with Trump is not that we do not know his misdeeds but that we know so much about them, and yet he remained in office for a full term. Which leads to the second objection: What about basic justice? Shouldn’t the wheels of justice be allowed to turn, as they would for any other wrongdoer? Wouldn’t letting him off set a bad precedent and add to the already dangerous sense of presidential impunity? Here we reach the meat of the argument. If we want Biden’s presidency to succeed, accountability to be restored and democracy to be strengthened, then a pardon would likely do more good than harm. Consider, first, Biden’s presidency. Biden has made clear in every way he can that he does not want or intend to be President Not Trump. He has his own agenda and has been impressively disciplined about not being defined by opposition to Trump. He knows Trump will try to monopolize the news and public discourse for the next four years, and he needs Trump instead to lose the oxygen of constant public attention. Legal proceedings against Trump, or even the shadow of legal proceedings, would only keep Trump in the headlines. The “helicopter question” (shouted by reporters to the president) would constantly be about what the Justice Department may or may not be investigating, what Trump and his allies are saying, whether Trump will be prosecuted, and on and on. Biden might try to deflect such questions by referring them to the Justice Department, but the media and the public will not accept a bland wave-off on so important and inherently political a matter as the prosecution of a former president. And that is before considering the noise emanating from conservative media and Republicans on Capitol Hill. Biden might find his own agenda overshadowed or sidelined by the never-ending Trump Show, the last thing he needs—and precisely what Trump wants. Moreover, to the extent that Biden recuses himself from any Justice Department conversations about prosecuting Trump (which he has said he would do, and which he should do), he would lose control over the timing and nature of a Trump indictment. It might come during an international crisis; it might come at a politically inopportune moment; it might come after Republicans have won control of the House and the Senate; it might cost the Democrats the House or the Senate. The last thing a president wants is a ticking political time bomb under his desk, and that is what a potential Trump prosecution would be. Biden is better served by defusing that bomb. On grounds of accountability, too, the case for a pardon is quite strong. To begin with, consider the kind of accountability that is most needed. Although we already know a lot about Trump’s possible criminal violations while in office, we know much less—far too little—about his possible entanglements with the Russians and other adversarial actors. The (controversial) former FBI agent Peter Strzok, who participated in the counterintelligence investigation of Russia’s attempts to penetrate Trump’s 2016 campaign, has made the case that Trump was compromised in some way by the Russians. But a full counterintelligence investigation to determine the truth was cut short by Trump’s rise to the White House. To leave this question dangling would blind us to potentially worrisome vulnerabilities and ensure that Trump never faces full public accountability for what may be the gravest damage he did. It is important, then, that Trump’s presidency be subjected to a full-scale, post hoc counterintelligence scrub. There should be a public element, modeled on the 9/11 commission, and also a nonpublic, classified element. Both elements could be complicated and hindered by the criminal investigation of Trump. The criminal and counterterrorism investigations would need to be continually deconflicted; Congress would be asked to back away from inquiries and witnesses that step on prosecutors’ toes; Trump himself could plead the Fifth Amendment—an avenue not open to him were he to accept a pardon. A further accountability advantage is transparency. A criminal investigation would have to be closely held, and grand jury materials would be secret. Prosecutors cannot reveal what they do not prosecute, which all but assures that some, perhaps much, of what they learn will not be made public. Imagine that they unearth a lot that is reprehensible or alarming, but that their findings do not add up to a criminal case they are confident of winning. If they decide against filing charges, the result might be to ensure that much of what the public deserves to know remains under lock and key. A noncriminal investigation faces fewer such constraints. Its entire point would be to foster a clearer public understanding of what happened under Trump. The public would know more, and would know it sooner, if criminal prosecution were off the table. What, then, about the argument from justice? If Trump violated the law, wouldn’t letting him off be simply wrong? Surely, justice should do its work blindly and without making exceptions for either the low or the mighty. This argument, too, is weaker than it seems. To begin with, “Let justice be done though the heavens may fall” is a bad principle for governing. Consequences matter. For example, if a trial were to result in an O.J. Simpson-style verdict, acquitting the former president despite overwhelming evidence of his guilt, the process would become a national embarrassment and a triumph for Trump. If the government obtained a conviction, but the result were to further polarize the country, further delegitimize the rule of law in the eyes of almost half the country, or hobble Biden’s presidency, those would be very high costs to pay. Legal functionaries can weigh the strictly legal equities, but a president’s job is to weigh the social and political costs of prosecution and punishment; far from violating norms of justice, the pardon exists specifically to allow the president to
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