Published by The Lawfare Institute
in Cooperation With
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 make exceptions in the national interest. In that respect, a Trump pardon would use the pardon power exactly as the Founders intended.
President Ford’s pardon of ex-President Nixon was unpopular at the time, and it may well have cost Ford his job. Yet history has come around to seeing it as a wise and farsighted decision, one that served the cause of justice better than the prosecutorial process could have done. It is very possible—probable, even—that history would judge Biden’s pardon of Trump the same way.
Those who prefer to bet on ordinary prosecutorial processes need to think harder about two problems. The first is that Trump and his many allies in the Republican Party and conservative media would turn the process into a circus. In his long career as a litigant, Trump proved himself to be the undisputed master of subverting and exploiting the legal process. A lawyer I know who deposed Trump almost 40 years ago still recounts with wonder Trump’s shameless posturing and table-pounding. Trump views the legal process as a propaganda channel and a public stage.
Those who oppose a pardon may imagine an august and deliberate process in which a humbled Trump submits to a judge’s decorous oversight. That is not the correct mental picture to have. Imagine, instead, a legal process waged through the media amid a rain of conspiracy theories while Trump’s lawyers use every trick in the book (and some not in the book) to stall, subvert and misdirect. Imagine the objections they will raise. Imagine the “evidence” they will introduce. If you liked what you saw in the dozens of frivolous lawsuits Trump brought to overturn the election, you’ll love the show he will put on in his criminal defense. Imagine the wall-to-wall talking heads denouncing the “witch hunt” and the millions of dollars Trump could raise off the “conspiracy.” Imagine the hats and regalia, the rallies and protests. That kind of spectacle would not bring the country together in recognition of Trump’s misdeeds. It might instead sow even more division and delegitimation.
But suppose, however improbably, that Trump behaved with perfect decorum, and that the legal process unfolded in orthodox fashion. Then would justice be served? Maybe. But here we come to the second problem—what is still, as it always has been, the strongest argument for a pardon.
Prosecuting an ex-president is a bridge the country has never crossed. The implications of seeing a former commander in chief in the dock are vast, profound and unknowable. True, prosecuting an ex-president might set a precedent that no one is above the law. But it might just as easily set a precedent that presidents prosecute their predecessors. Imagine what Trump might have done with this weapon. Imagine what a shrewder and more ruthless demagogue might do with it. We must not assume that someone as incorruptible as Merrick Garland will always be attorney general—or even will be attorney general a year from now. To be prudent, we should assume the opposite: that any precedential weapon can and may be used by bad political actors in bad political ways.
Only two modern presidents, Trump and Nixon, have been credibly accused of serious crimes while in office. Trump’s pardon would add to Nixon’s pardon in putting precedent squarely on the side of keeping the sword of criminal law in its sheath where ex-presidents are concerned. On balance, the sheath is where that sword should stay.
Given the gravity of Trump’s (and Nixon’s) known and potential crimes, pardoning them is a bitter pill to swallow. Remember, though, that a federal pardon would not let Trump escape the legal scrutiny he faces in New York state and probably in Georgia (where he pressed a state official to doctor the election returns, a likely crime). It will not get him out of his Senate impeachment trial or possible disqualification for future office under the 14th Amendment. It will not let him escape the noncriminal investigations that need to happen, and it will help ensure that the public sees the full results of those investigations.
With or without a pardon, Trump faces a world of legal pain. He faces more accountability of more kinds than any prior ex-president. For Biden, the most important thing is to heal the country’s pain and, to coin a phrase, build back better. If he thinks a pardon would help, he should grant one.