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Should Biden pardon everyone on Trump’s “enemies list”?

The Atlantic thinks so; their headline says, “Pardon Trump’s Critics Now” (see story here), arguing Biden has a moral obligation to do so.

However, I can think of reasons why he shouldn’t. First and foremost, people who haven’t committed crimes don’t need pardons, and people who have should be prosecuted.

Even if Trump appoints hyper-partisan federal prosecutors willing to pursue baseless prosecutions (at the risk of their licenses to practice law), judges, grand juries, and trial jurors will stand in the way. Trump notwithstanding, I think we can still trust and need to trust the legal system to protect the innocent.

And if Trump goes after them outside the rule of law, such as by ordering arbitrary arrests and detentions, pardons won’t protect them anyway. If he’ll ignore courts and legal due process, he’ll also ignore pardons.

He could also get around pardons for past alleged crimes by detaining people to prevent future crimes. That’s unconstitutional, but there’s historical precedent for it he could point to: The detention of Japanese-Americans in World War 2.

Finally, while The Atlantic isn’t laying a trap for Trump’s benefit, its suggestion could turn into one. If Biden issues wholesale pardons to the targets of Trump’s wrath, Trump could use it to legitimize pardoning the Jan. 6 criminals, arguing he’s not doing anything Biden didn’t do.

So, while The Atlantic‘s suggestion is superficially attractive as a means to ward off Trump’s revenge, it’s questionable whether it would work, and would give him a precedent it’s better for him not to have.

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