Nikki Haley is also prone to grace.
The middle of a primary campaign isn’t the best place to think hard about the various actions involved in the criminal case against Trump and potential leniency, but the idea of pardoning Trump is a sensible one that, depending on your exact circumstances, could really serve the purpose. public interest.
The constraint that Trump’s indictment represents is that, based on the evidence we now have, he appears to be shot dead; at the same time, nothing good will come of the inevitable political and legal war with the indictment by the US government of the leader of the opposition party.
The power of presidential pardons is overwhelming. The Supreme Court called it « unlimited » in the 1886 case Ex parte Ghirlanda. It extends TO « any offense known to the law, and may be exercised at any time after its commission, either before the commencement of the judicial proceeding or during its pending, or after conviction and judgment ».
Among other things, it allows you to take into account factors that the law alone may not take into account.
The most famous example of high politics is, of course, Gerald Ford pardoning Richard Nixon for Watergate-related offenses, although that episode is from a different era when politics was a more serious business for more serious people. Ford did not go around boasting that he had forgiven Nixon to gain attention and curry favor with Nixon’s supporters, while Nixon, for all his desperate flaws, was a man of considerable substance and success.
Ford, of course, justified his leniency on the grounds that he distanced himself from, as he put it in his national address, “a tragedy in which we all played a part. It could go on and on, or someone has to write the end of it. I’ve concluded that only I can do this, and if I can, I must.
We are still a long way from getting anything like this place. First, Trump is expected to lose the Republican nomination, and he is currently the heavy favorite. So, should some other Republican win the presidency, or should President Joe Biden see the wisdom of potentially keeping the defeated Trump out of jail, either after beating him again or defeating another Republican.
This is all very speculative and who knows where the docs case will be in a year or two? It looks formidable now, but Trump has yet to mount a legal defense.
That said, the case for a pardon is simple.
The conventional wisdom is that our politics are overheated. Concern about this is often overblown (things have been as or more hectic before), but having a former president tried in a federal criminal case and potentially spending the rest of his life in prison will only make things more intense and the most divided country. The pardon itself would be a sticking point, as was Ford’s pardon to Nixon, but it would at least take the unprecedented possibility of a former president behind bars off the table.
There is a significant plurality of the country who simply will not accept the legitimacy of the allegations. Maybe that shouldn’t matter: the law is the law. If the shoe were on the other side, though, and if it were Ron DeSantis’ Justice Department pursuing a Democrat with a significant chance to run against him, there would be an outcry from the very people who now dismiss any doubts about the Trump accuses.
Those doubts are based on more than the other side’s typical partisan suspicions. The Trump indictment comes against the backdrop of the years-long Russia investigation by the FBI and Special Counsel Robert Mueller which cast a shadow over the Trump campaign and early presidency and which was based on very fine and politically motivated information.
It comes after Hillary Clinton got a pass from the prosecution about her « home brew » email setup as Secretary of State, which was designed to circumvent government record-keeping rules and that she transmitted and stored classified information and sensitive discussions, putting their safety at risk.
It comes at the same time the Justice Department failed to appoint a special counsel to investigate whether the Biden family has used its influence to enrich itself.
What we should want to avoid is a model of legal punishment and counter-punishment. This would distort our legal process beyond anything that has transpired up to this point, further subordinating it to politics and undermining public trust in it. Perhaps this judicial tribal warfare has already been unleashed, but a pardon from Trump has a chance to purge some of the poison from the system.
It’s also worth pointing out that in any of these grace scenarios, Trump lost his last bid for president, both in the primary and in the general election. That means it would presumably be a very small amount, whether he was rejected by Republican primary voters or he lost a national election a second time (although I thought the same thing after the 2020 election). We’re not talking about a pardon that clears the way for another White House bid, but rather a consolation prize for someone who’s greatly diminished and is potentially losing his freedom as well.
There are reasonable objections to all of this. To pardon Trump would be to enforce a rule that high-level political figures don’t have to abide by the same rules about handling classified documents that everyone else does. Also, usually someone asks for forgiveness, and expresses remorse for their transgression. It is impossible to imagine Trump doing this. Finally, we don’t know what 2024 will look like, and it could be that Trump ultimately seems more unlikable to a Republican president and more obnoxious to Joe Biden.
At the end of the day, a Trump pardon would mean ending the Trump era by trying to move beyond a noxious chapter that both he and his often unscrupulous and overzealous pursuers contributed to. If Trump is a Nixon, it would be better for the country if it found his Gerald Ford.