If President-elect Joe Biden hopes to fulfill his pledge to unify the nation, he should do the unthinkable and pardon Donald Trump.
Trump would, of course, be one of the least deserving recipients of a federal pardon in history. His pardon could not be justified based on his innocence or his contrition because Trump is not contrite; to the contrary, he is currently endangering our democratic processes by relentlessly undermining the legitimacy of Biden’s election and thwarting a peaceful transition.
No wonder Biden’s initial instinct was to oppose granting Trump a pardon. He actually foreclosed this option by pledging last May that, if elected, he would not pardon Trump.
But that doesn’t mean there aren’t a few good reasons to consider it anyway.
First and foremost, Trump’s acceptance of a pardon — under the 1915 Supreme Court opinion in Burdick v United States — is an admission that he was guilty of the crimes for which he has been pardoned. Pardoning him may be the only way that Trump even implicitly concedes he did anything wrong.
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And a federal pardon wouldn’t eliminate all of Trump’s potential criminal exposure. The Supreme Court last year declined to overrule long-standing precedent which allows parallel state and federal prosecutions based upon the same facts.
Accepting a federal pardon — especially a pardon for crimes violating both federal and state laws — would be a double-edged sword for the president.
So, a presidential pardon would not bar Manhattan District Attorney Cyrus Vance from investigating and potentially prosecuting Trump and his company for crimes under state law. And his investigation already led to a Supreme Court ruling this summer rejecting Trump’s claim of immunity from criminal investigation while president.
Accepting a federal pardon — especially a pardon for crimes violating both federal and state laws — would be a double-edged sword for the president. And whatever the result of any state investigation or prosecution, it could not be laid at Biden’s doorstep. It would not be his appointees investigating the former president, his recent political adversary; it would not be his employees prosecuting him. In fact, a pardon from Biden would mean that they could not.
Democrats already know what the mirror image of that looks like. When Trump called for the jailing of his political opponents, he was justly condemned as promoting a vendetta characteristic of a banana republic. Despite the efforts of Trump’s Justice Department, no basis was found to prosecute his political rivals. Trump tried anyway; Biden can, and perhaps should, be better than that.
American democracy cannot tolerate the prosecution of political opponents.
But the justification for a pardon can also be grounded in a higher purpose. The 73 million Americans who voted to re-elect Trump two weeks ago will be just as angry about a good faith federal investigation of Trump after he has left office as Democrats were angry about Trump’s baseless chant to lock up his former political opponents.
Right now, even after the Trump presidency that Americans believe was divisive, polls suggest that enormous numbers of Americans still believe that we have more in common with one another than what separates us. There is an opportunity to rediscover our common ground with one another — and the way forward does not involve relitigating the last four years in federal criminal court.
Like Ford, pardoning his predecessor will subject Biden to intense, scathing criticism.
A Biden pardon of Trump, like the pardoning of former President Richard Nixon 46 years ago, would be intended to heal the nation and foreclose the possibility of an ongoing cycle of retribution after political parties change control of the government.
We’ve done this before.
When Gerald Ford became president in August 1974, following Nixon’s resignation over Watergate, Ford told the nation that “our long national nightmare is over.” The following month, Ford pardoned Nixon for any federal crimes committed as president — including his involvement in the Watergate coverup. .
Nixon did not deserve that pardon and, despite rumors to the contrary, Ford never promised Nixon a pardon to induce him to resign. (Nixon’s White House considered the possibility of Nixon pardoning himself, Ford revealed in an interview with Merv Griffin in 1979; Trump has reportedly done the same.) In subsequent testimony before Congress, Ford explained that, with the pardon, he sought “to shift our attentions from the pursuit of a fallen president to the pursuit of the urgent needs of a rising nation.”
Though Ford wanted to heal the wounds opened by Watergate, he was severely criticized for his actions. Ford’s narrow defeat to Jimmy Carter in the 1976 presidential election has often been attributed to backlash about the pardon.
Yet, history has viewed the pardon more favorably: In 2008, the John F. Kennedy Library chose Ford as the recipient of its “Profile in Courage” award for pardoning Nixon. In announcing the award, Sen. Edward Kennedy, D-Mass., said: ''I was one of those who spoke out against his action then. But time has a way of clarifying past events, and now we see that President Ford was right.” Kennedy added, “His courage and dedication to our country made it possible for us to begin the process of healing.”
Biden’s pardon of Trump would be even more courageous than Ford’s action — though, like Ford, pardoning his predecessor will subject Biden to intense, scathing criticism.
Ford was protecting his former boss and the leader of his party, while Biden would be breaking a promise in order to pardon an unrepentant political opponent who spent his term dismantling the legacy of the Obama-Biden administration.
But Biden’s pledge was made before the closeness of our election revealed how many Americans wanted Trump to remain in office despite his misconduct (or the election results). Clearly, a Biden administration investigation, let alone the prosecution, of Trump could well make the former president even more of a martyr to his millions of followers, fuel a further escalation of the existing partisan divisions and even lead to civil unrest.
It may seem fair and emotionally fulfilling to treat Trump as he so often threatened to treat his own political opponents. But Biden made the case that he, and the country, ought to be better than that. As unsatisfying as a pardon would sit with many of us, this tough decision would be one good way to begin the healing Biden offered.