Jeff’s column on why a pardon for former president Trump just isn’t enough, with that little decapitation devotional at the end, had me laughing so hard my sides still hurt.
I took a stab at the pardon issue the other day after Vivek Ramaswamy’s demand that the other GOP candidates ape his genuflection to The Great Man. If I sounded skeptical, I have my reasons. Starting, for example, with my oft-stated position that because of the scandalous history of pardon-power abuse in recent decades — the Ford pardon of Nixon is an honorable exception — there should be a constitutional amendment to repeal this vestige of a world that no longer exists, one that had a comparatively tiny federal criminal-justice system and underdeveloped due process for defendants and convicts.
Beyond that, the answer when the question of a pardon for Trump is raised should obviously be, “Has the former president asked for a pardon?” If he hasn’t, why discuss it?
An unsolicited pardon is not a simple grant. It is really an offer. Nearly two centuries ago, in United States v. Wilson (1833), the Supreme Court ruled that a pardon may be refused by the intended recipient. Why would a person decline a president’s act of clemency? Simple: People who adamantly maintain that they have done nothing wrong, as Trump does, usually do not want a pardon. Not only is a pardon publicly understood as an admission of guilt (even though that is not the only plausible interpretation); in a 1925 case — Burdick v. United States — the Court observed that since a pardon may be offered before a person has been tried and sentenced (indeed, before a person has even been charged), and the offer of the pardon may be refused, it is reasonable to assume that if the pardon is accepted, the recipient must be guilty (as the Court put it, the “confession of guilt implied in the acceptance of a pardon may be rejected” by the intended recipient).
Obviously, a person who insists that he is innocent will want his lack of guilt established in the criminal case, either by prevailing at trial or by having the prosecutor drop the case prior to trial. Consequently, since Trump maintains his innocence, the only favor Vivek does for him by raising the pardon issue is to give Trump an opportunity to say “no.” This is only of marginal value to Trump since he has already said he is not guilty. And it is of no value to Ramaswamy — it just illustrates that he doesn’t know what he’s talking about.
You know who could hugely benefit from the potential of a Trump pardon? President Biden, that’s who.
As of this moment and for the next year and a half, Biden is the only person in America who is constitutionally capable of pardoning Trump. Republican candidates can only talk about it — to no good end.
More to the point, if Biden offered a pardon and Trump accepted it (as I bet he would), it would be seen by the vast majority of the country as a patriotic act of statesmanship. It would improve, perhaps significantly, Biden’s chances of being reelected. Sure, cynics like me would point out that pardoning Trump conveniently paved the way for the (inevitable) dropping of the Biden Justice Department probe into Biden’s own mishandling of classified information. But we’d be a cranky few. Most of the country would celebrate Biden for emulating President Ford’s act of clemency, for moving the country past a Trump-created crisis just as Ford moved the country past Watergate. And even the hard Left, which wants Trump prosecuted, would have to admit that, by getting Trump to accept a pardon, Biden had cleverly induced him to admit guilt. In the end, the historical judgment of guilt is what anti-Trumpers crave — few care all that much whether the 77-year-old is actually sentenced to prison; and sensible Americans are put off by the notion of a former U.S. president in a U.S. penitentiary, even if they have no use for Trump.
Moreover, if Biden pardoned Trump, it would reduce the growing Republican pressure for a much more aggressive investigation into Biden family influence-peddling. Again, this would irritate people like me, who think the Biden matter — the likelihood that the sitting president has been bought by corrupt and anti-American regimes — should be pursued on its own merits. But again, we are a cranky few. The political class sees cashing in as “everybody does it” behavior. Plus, many of the House Republicans most aggressively pressing Biden’s possible corruption appear to be more motivated to help Trump’s selective prosecution defense than to get to the bottom of the Biden mess. If Biden were to throw Trump the life-line of a pardon, these Republicans would lose their steam.
A Biden pardon of Trump makes too much sense, so it will probably never happen.
As for the pardon chatter among Republican candidates, it is pointless. As Rich and I discussed on the podcast this week, and as I similarly discussed with our friend Hugh Hewitt on the radio yesterday, the classified-information issues in Biden special prosecutor Jack Smith’s case against Trump are sufficiently complicated that I can’t see the case getting to trial before the 2024 election (especially given the plethora of criminal and civil cases otherwise confronting Trump). The high likelihood, then, is that if the Republicans win the 2024 election, the pardon issue would be moot. A Republican Justice Department would simply drop the case — and even if Democrats retook the presidency (and the Justice Department) in 2028, the five-year statute of limitations would have lapsed on Trump’s alleged 2022 offenses.
One exception is Chris Christie. The former New Jersey governor and U.S. attorney is a Justice Department law-and-order guy (which tugs at my heartstrings, my past disagreements with him notwithstanding). In a Fox News radio interview with Brian Kilmeade this week, Christie indicated that he would follow prudent DOJ pardon procedures. They call for a person to formally apply for a pardon, and for the criminal-justice process — meaning trial and sentencing — to be allowed to play out. After all, if a person is found not guilty, he doesn’t need a pardon. Christie rightly pointed out that the pardon is meant give the president power to ameliorate unfairness in the criminal-justice process; ergo, it would be premature to judge whether there has been unfairness until that process plays out.
Presidents don’t have to play it that way. Constitutionally, the president is not bound by Justice Department rules. Lincoln, Carter, and Biden mass-pardoned Confederate soldiers, Vietnam draft dodgers, and pot possessors — they didn’t demand individual pardon applications. Nixon had not been charged when Ford pardoned him (though he had resigned and apologized). Nevertheless, in modern times, presidents who don’t adhere to the Justice Department’s process of carefully evaluating pardon applications (including getting input from prosecutors on the facts of the petitioner’s case) have tended to abase themselves.
In this instance, there’d be no need to do that. If Biden does not pardon Trump, then the next Republican president and attorney general will either (a) drop the case against before trial, or (b) let the trial and any appeals play out, wait for Trump to apply for a pardon, and then judge it at that point based on the state of the record, in what is likely to be a very different political moment than the one we’re now in.
Chris Christie has this exactly right. Vivek Ramaswamy has it exactly wrong. But the two people who could most benefit from a pardon are Joe Biden and Donald Trump.