A few days ago I argued (here) for pardoning Trump “because it would take the wind out of any efforts by him to seek retribution.”
“How would it look,” I asked, “if he’s forgiven, but won’t forgive?” But let’s say Biden doesn’t pardon Trump, or does, but it makes no dent in Trump’s urge for vengeance?
Right now, Biden’s staff — and Democrats in Congress who have his ear — are debating “whether to take Trump seriously and literally when it comes to his prospective revenge tour against Democrats and others in the so-called Deep State who’ve raised his ire,” Politico reported on Thursday, December 5, 2024 (read story here).
Sen. Ed Markey (D-MA) thinks Biden should issue preemptive pardons only “if it’s clear by January 19 that [revenge] is his intention.” Others don’t want him to wait until the last minute. Rep. Brendan Boyle (D-PA) says, “This is no hypothetical threat. The time for cautious restraint is over.”
I agree with Rep. Boyle. No one really knows what Trump will do, but I don’t trust him. He’s expressed many times his desire to prosecute people he feels did him wrong. He’s named names. They, and Biden, should assume he means what he says.
Some argue there’s precedent for preemptive pardons. They point to President Ford’s pardon of Richard Nixon, who was pardoned before being charged with crimes. Which is true as far as it goes, but Nixon wasn’t innocent. Preemptively pardoning innocent people would break new ground.
A counterargument is that innocent people don’t need pardons, because any prosecutions brought against them would fail in court. But not everyone has Liz Cheney’s millions (from book sales, among other sources) to pay for a criminal defense. This argument also overlooks the possibility of zealous, partisan prosecutors fabricating evidence; or conducting witch hunts until they find an offense to charge (e.g., unpaid parking tickets, or a mistake on a tax form).
Some people on Trump’s “enemies list,” e.g. witnesses who testified before the House Jan. 6 committee, only have their government salaries. Trump could exact revenge on them by destroying them financially, simply by forcing them to hire defense lawyers. These are the people who most need the protection that pardons could provide them.
Biden also needs to look ahead to the future. Failing to protect functionaries who did nothing wrong from partisan vengeance will inevitably deter others from accepting positions in future administrations. They’d have to ask themselves whether accepting the job was worth the personal and financial risk, and many will decide it’s not.
There’s also a favoritism factor. It wouldn’t look good if Biden pardoned his son, but threw people who loyally served his administration under the bus.
Some potential pardon recipients aren’t on board, at least not publicly. Sen.-elect Adam Schiff (D-CA), himself an object of Trump’s threats, said “I would urge the president not to do that. I think it would seem defensive and unnecessary.”
You can argue it’s unnecessary, because of checks within the legal system. Grand juries can refuse to indict, judges can dismiss, juries can acquit, and reckless prosecutors can be disbarred. But this argument assumes these guardrails won’t fail.
We’ve already seen some of the Constitution’s important guardrails fail. Want examples? I’ll give you three big ones: Republican senators refused to disqualify Trump from holding office again under the impeachment clause, the Supreme Court refused to disqualify him under the insurrection clause, and the Supreme Court gave him immunity to commit crimes when he returns to office.
So we must ask, what other guardrails will fail? The Department of Justice is supposed to administer the nation’s laws impartially, but Trump aims to appoint a partisan attorney general who will carry out his orders, and it’s not at all clear the GOP-controlled Senate will bar the door to such a nominee. Another guardrail protecting the innocent could fail. That’s why pardoning innocent people has become necessary. Pardons are the final guardrail.
There’s another reason why Biden should issue blanket pardons. It’s the exact same reason why I’ve argued he should pardon Trump: Take revenge-seeking off the table, so the new president will focus on the job voters gave him, which is bringing down the price of eggs and gas.