A Trump Pardon Won’t Save Us
Don’t listen to those on the right begging for a legal reprieve for the former president.
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That didn’t take long. Less than a week after Donald Trump’s 37-count indictment was unsealed in federal court, conservative writers began to call for a pardon of the former (and possibly future) president.
In The Washington Post, Marc A. Thiessen and Danielle Pletka made the case for a Trump pardon from Joe Biden. “In pardoning Trump, Biden would be a true statesman,” they argue. “Sparing the country the ordeal of a trial would go a long way toward repairing the nation’s frayed political fabric. [Biden] would display the kind of leadership that has been missing in Washington. And he would drive Trump crazy. With one action, Biden would eliminate the narrative of a ‘deep state’ conspiracy that is helping to fuel Trump’s political comeback.”
In Politico, meanwhile, Rich Lowry focused mainly on Trump’s rivals for the Republican nomination. If one of them manages to defeat Trump in the primaries and then beats Biden in the 2024 general election, the new Republican president would be wise to use the pardon power to drain “poison out of the system” and put a particularly “noxious chapter” in our nation’s history behind us.
Given that I thought it would be unwise for the Biden Justice Department to prosecute Trump, I’m open to persuasion by such arguments. Like all three writers, I worry about the longer-term consequences of voters in one of the country’s two major parties viewing federal law enforcement with maximal suspicion, assuming all of its high-minded appeals to the rule of law involve partisan double standards and conceal baser motives, including the ambition to neutralize political opponents through legal legerdemain.
Yet both opinion columns make the mistake of viewing the latest Trump indictment in isolation from the broader context of Trump’s legal difficulties. Those difficulties are extremely sweeping and serious—and no pardon from a president, whether it’s granted by Biden before November 2024 or a Republican commander-in-chief after January 20, 2025, can make them disappear. For that reason, a pardon in the classified documents case will do little to protect the country from its ongoing Trump threat.
Daring the Authorities to Indict Him
Both op-eds concede that (in the words of Thiessen and Pletka) “the case against Trump is damning.” This is true. That’s why one line of argument from Trump and his defenders is transparently bogus. Yes, Biden and Trump’s vice president Mike Pence were never charged after having been caught in possession of classified documents. But that’s because both admitted the error as soon as it was discovered and returned classified material to the government without incident.
The response from Trump could not have been more different. Not only did he allegedly store classified documents in insecure, public places at Mar-a-Lago, and not only was he caught on tape bragging about having the documents and showing them to people lacking proper security clearance. He also allegedly attempted to willfully retain national security secrets by lying repeatedly to the Justice Department about which documents he had in his possession and whether he had returned everything to the authorities, while also moving boxes of documents so that his own attorney could not comply with a subpoena demanding the documents be transferred to the National Archives.
As Eric Levitz has pointed out in New York magazine, the position staked out by the former president and his Republican defenders—that he’s being unfairly targeted by the DOJ due to politically motivated double standards—is risible. The truth is the exact opposite: Special counsel Jack Smith bent over backwards to give Trump the opportunity to avoid prosecution. Had the former president only complied with requests to return the classified documents, he would never have ended up being charged with multiple felonies.
That’s why, despite my initial concern about the wisdom of prosecution, I’ve had to concede that Smith really had no alternative but to move ahead with an indictment in this case. Trump was asking for it, all but daring the authorities to come after him. (Whether this was because he considered himself untouchable, because he thought getting indicted would help him politically, or some other motive, I have no idea.)
This background complicates the case for pardoning Trump. As Lowry admits, “usually someone asks for a pardon, and expresses remorse for their wrongdoing.” Yet neither is at all likely in Trump’s case, because the former president believes himself to have done nothing wrong and to be the victim of unjust harassment by political enemies.
The Limited Power of Pardons
It is nonetheless the case that, if issuing a pardon could spare the country the turbulence sure to follow from trying, convicting, and sentencing to prison a former resident of the White House currently campaigning to return there, doing so might be worth it—even if the alleged criminal expresses no contrition.
There’s just one problem, however. Pardoning Trump for the actions that led to the 37-count indictment in the classified-documents case would do nothing to clear him of the charges that have already been brought against him by Manhattan District Attorney Alvin Bragg. Or the potential charges he faces in Fulton County, Georgia related to his efforts to strongarm Georgia’s secretary of state to “find” votes that would flip the state to Trump in the 2020 election. Or, potentially gravest of all, the charges that could grow out of Smith’s still-ongoing investigation into Trump’s words and deeds leading up to and throughout the insurrectionary riot on Capitol Hill during the afternoon of January 6, 2021.
That’s a grand total of four possible indictments—two federal and two at the state level. Several things follow from this array of charges. First, even if a present or future president pardoned Trump for the charges connected to his mishandling of classified documents, a separate pardon would need to be granted for any future federal charges connected to January 6. Since the latter case would concern something that looks very much like a self-coup attempt, however ineptly executed, on the part of a sitting president, issuing such a pardon without at least an admission of guilt and expression of remorse from the accused would be ill-advised. Any pardon granted without such an admission of guilt and expression of remorse would have the effect of exonerating Trump for his actions after the 2020 election, thereby demonstrating to Trump himself or other potential bad actors that acts of outright electoral subversion and defiance of the peaceful transfer of power can be undertaken without fear of legal retribution.
But even if such a second pardon were granted, Trump would still be facing a trial in New York and a possible indictment in Georgia, each of which could lead to conviction and jail time. And in these cases, there would be no possibility of a presidential pardon, since the pardon power enumerated in Article II of the United States Constitution only applies to federal crimes. (Whether Trump could be pardoned by state officials in New York or Georgia is another matter. Though as this helpful Politico story explains, it isn’t especially likely in either state.)
If Republican voters (egged on by demagogic rabblerousers in the media and elective office) are convinced Trump is being unfairly targeted, I can’t imagine them being placated by seeing him receive two presidential pardons for federal crimes and yet still facing possible trial, conviction, and imprisonment in other jurisdictions.
The Fate That Awaits Us
The country is walking a dangerous road, with potentially dire consequences. But as much as we might wish that Joe Biden or a future Republican president could simply use the pardon power to drain the “poison out of the system,” in Lowry’s words, there is no such magic wand. Donald Trump got himself into each of these legal messes, and his fate will now ultimately be decided by judges and juries—just as our collective political fate will be determined to a large extent by how Trump and his most devoted supporters respond to these outcomes.
The only way out is through.
Damon Linker writes the Substack newsletter “Notes from the Middleground.” He is a senior fellow in the Open Society Project at the Niskanen Center and a regular participant in the weekly “Beg to Differ” podcast at the Bulwark.
This article was cross-posted at Notes from the Middleground.
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