How to think about protective pardons
Bottom line: do them.
Jan 13, 2025
The whispers about possible pardons by
Biden as preemptive moves against reprisal prosecutions by the incoming
administration have quieted over the last few weeks. That could indicate that
the topic is no longer being debated in the Oval Office, which has its way of
generating gossip on the ground. I hope that’s not the case. The pardons
present a complicated set of considerations for Biden and the White House, and
I think that they’re one of the trickiest issues that remain on his plate. But
on balance, and based on the most important principles in play with the advent
of Trump 2.0, I think it’s very important for him to execute on them.
Let’s start with the gravity of the
issue. Trump has been blathering for years about prosecuting his enemies, by
which he means basically any prominent person that pointed out his obvious
guilt for the most serious crimes against the Constitution by a President in
our history. His announced targets include, for starters, Joe Biden (whom he
has called “the most corrupt president in the history of the United States”),
Kamala Harris, Liz Cheney, and Adam Schiff (“a sleazebag and a traitor [who]
should be prosecuted for the damage he has done to our country”). The list
doesn’t remotely stop there: at different points, he has suggested prosecutions
are in order for various CIA and FBI officials and the former chair of the
Joint Chiefs of Staff; prosecutors in cases involving him, including Letitia
James, Alvin Bragg, and Fani Willis; and journalists and media organizations,
including Mark Zuckerberg and Google.
Trump’s signature move is to keep
opponents off balance with a series of outrageous suggestions. He is doing the
same here, where he is unlikely to follow through on many or most of the
highest profile targets. However, some such prosecutions, however idiotic and
sordid, can’t be discounted, particularly with his base baying for it.
The graver indications of an actual
set of reprisal investigations and prosecutions emerges from Trump’s selection
to head the FBI, Kash Patel. Patel notoriously compounded a list of 60 persons
who participated in investigations of Trump or were otherwise antagonistic, and
therefore need to be punished. The list is so broad and scattershot as to be
laughable, but I doubt anyone on it considers it funny. And in fact, I know
people on it—who it goes without saying but we should repeat again and again,
have done nothing remotely wrong or criminal—who already are planning for the
exhausting and hugely expensive prospect of responding to a bogus
investigation.
Some of Patel’s targets are young or
career employees who lack the resources for an extended legal fight with the
federal government. Think of people like Cassidy Hutchinson, Stephanie Grisham,
or Alexander Vindman, all of whom reluctantly told the truth about Trump and
now are looking at devastating retaliation.
The first argument from people who
believe Biden should not issue protective pardons is that Trump is just blowing
hot air. Trump’s designation of Patel is a forceful refutation of that
argument.
The problem, as always with Trump, is
there’s no distinguishing the hot air from the genuine cold threat. I’m happy
to wager that Trump will not go after Barack Obama, whom he has said should
face military tribunals. But it would be foolhardy to bet that Trump just drops
the idea of retribution altogether. And why else nominate Patel, who is
practically synonymous with reprisal investigations? Patel also gives Trump a
political cushion, because he can say he is leaving decisions up to the FBI and
Attorney General, confident that his evil intent will be carried out.
And once the FBI gears up, the
consequences for the blameless target are dire. There’s no real ability to
short circuit the investigation itself, and that will mean huge stress, big
legal bills, and potential public embarrassment for the targets. (Of course,
the DOJ is not supposed to reveal information about ongoing investigations, but
good luck with that one; the adverse publicity is an essential part of their
plan). And it’s a cliché—but like many clichés, true—that a prosecutor can get
a grand jury to indict a meritless case. The real protection the prosecutors’
professional obligations not to bring such cases. One consequence of the
Patel/Trump plan is the resignation of some—hopefully many—feds who refuse to
play along. But they’ll be able to find somebody who is willing to carry out
the meritless prosecutions.
A nuanced version of the argument
against protective pardons, which Jeff Toobin among others has offered, is that
people who receive them might find themselves subject to target practice by
Trump allies in the form of civil lawsuits, congressional investigations, or
even vigilante attacks. But what we have seen from Trump and his allies thus
far gives no reason for comfort that they would be happy with just a little
payback. MAGA’s reserves of enmity for those they see as deep state traitors
are limitless, as is the zeal of the most rabid members of congress to hold
show hearings to harass Trump’s perceived enemies. In any event, with Patel
atop the FBI, a reprisal criminal investigation remains both the most tangible
and the most dangerous concern on the horizon for those on the enemies list.
Opponents of protective pardons—or
what former White House Counsel John Dean has aptly termed “safe harbor
pardons”—also offer a series of concerns based on the legal status or operation
of what concededly would be an unusual use of the pardon power. I don’t think
that they hold water. I also doubt that they are important considerations in
the White House’s calculations. Just to canvass them briefly:
• Pardons can’t be given prospectively
for investigations that have not commenced. That’s wrong; Ford did it for
Nixon. A pardon can’t include undefined crimes in the future, but it can cover
past conduct that has not yet come within the crosshairs of the DOJ.
• Pardons require the recipients to
admit guilt, and these putative recipients are innocent and wouldn’t want to
have to do that. That’s also wrong. The idea traces to a now discredited
reading of a statement in a 110-year-old Supreme Court case. Recent authority
in the federal courts of appeals specifically rejects the reading, which is
untethered to any principle in the pardon power.
• Pardons can’t be granted to a broad
group of people. Not so. There are many counter-examples, from George
Washington’s pardon for participants in the Pennsylvania Whiskey rebellion to
Jimmy Carter’s pardon for Vietnam-era draft dodgers.
To my mind, there are two very serious
political and ethical counterarguments to the idea of protective pardons worth
considering. The first is that it will exact a major hit on Biden’s legacy.
Recent presidents such as George H.W. Bush and Bill Clinton both earned
asterisks on their records for controversial, late-term pardons: Bush of Casper
Weinberger and Clinton of Marc Rich. For Biden, it would be more like a galaxy
of asterisks. It would figure in any account of his Presidency. He will already
be leaving office with low approval ratings, driven in part by Trump’s endless
gutter level attacks and part by his perceived large share of blame for the
Democrats’ loss. It is overall an unfair assessment of what was in many ways a
very successful presidency. He will need to look to history’s judgment for
rehabilitation, along the lines of say, Harry Truman. Taking on this
valedictory scandal will make any rehabilitation that much harder and longer.
Second, and relatedly, protective
pardons of the 60 or so possible targets for retribution could play completely
into Trump’s hands in providing a case for false parallels between the Biden
and Trump administrations, a whataboutism that both sides corruptly politicize
the criminal justice system to aid friends and punish enemies. It is, of
course, a completely false equivalence. But on the soundbite level, it’s nearly
irresistible. That’s a body blow not just to Democratic efforts to fairly
distinguish themselves from Trump, but to broader public confidence in the
justice system, which has already significantly eroded. If democratic
constitutional rule is to survive Trump 2.0, the work to restore public trust
in institutions of government will be monumental. Protective pardons could make
the hole we will have to dig out of even deeper. It would be at no fault of the
Biden Administration, but that’s no real help.
So I acknowledge this as a really
knotty problem, and I understand that people calling for safe harbor pardons
are asking Biden to make a great sacrifice, especially as the final act in a
50-year career on the public stage. I find in politics—not to mention jobs,
parenthood, and life—principles play their most important role in resolving
hard problems. That is, if you’ve worked out certain principles already, you
can bring them to bear on the hardest and most puzzling questions. I have
shared the two principles that I think are most important in past Substacks and
my reflections on my resignation from the LA times. In my opinion, two
things matter most in the era of existential challenge to our democracy that
we’ve entered. The first is insisting on the truth, or more to the point,
calling out lies and calmly sticking to the facts of the matter in the face of
rampant disinformation. The second is fighting back, hard, against every inroad
Trump attempts to make on constitutional rule, firmly rejecting the idea of
capitulating or letting things pass out of a sense of futility.
Applying those guiding principles here
points to a clear answer to this choice that Biden faces in his final week in
office. Yes, wholesale pardons of all the people on Patel’s list—which I think
would be the smartest and most defensible group to cull—will allow the
opposition to claim it’s the Democrats who are playing politics with criminal
justice. But that charge is false: the prosecutions of Trump and his close
circle have all been righteous, based on fact and law; the proposed reprisal
prosecutions of Trump’s enemy list would be the very opposite. And its falsity
is demonstrable to fair minded listeners or, we have to hope, history.
Finally, the very plausible
prosecution of the people on Patel’s list would be as rank and horrifying a
violation of everything the country stands for as anything Trump has done so
far. It’s virtually the definition of authoritarian rule. It’s not certain
Trump will carry them out, but by the time it’s clear, it will be too late for
Biden to do anything. And when has it ever worked out to assume that Trump will
not do his worst? Not much more needs to be said about it at this point, though
if it transpires, there will be volumes. But in brief, if people can be
prosecuted for the crime of displeasing the president, then we are in Putin’s
America.
Biden should pull the trigger on
protective pardons right away.
