Preemptive Pardons?

I think the preemptive pardon issue—the idea that President Biden should use pardons for people who have not been charged yet but may be at risk under the Trump Administration—is a very difficult one to assess. Unlike the Hunter Biden pardon, specific to one person, there is speculation that these could be broader, akin to President Carter’s pardon of all Vietnam War draft evaders.

As for the people who might fall within this broad effort to protect people, there are some who would welcome a pardon, concerned about the threat to themselves and their families. There are others who are offended by the idea—they don't believe they've done anything wrong. A president cannot force a pardon on a recipient. There’s a 1914 Supreme Court case called Burdick that clearly establishes the rule that a recipient must accept a pardon before it applies to them.

John Dean, who was President Nixon’s White House Counsel during Watergate, has called for “safe harbor” pardons, which he believes should be broadly issued to insulate people involved in investigating and prosecuting Trump, beginning with the Mueller investigation, going through the January 6 committee hearings, and up through the criminal cases against the president-in-waiting. He believes there should be pardons for everyone on the various revenge lists in circulation, including members of the media. Dean even suggested pardoning Trump himself, prompting a flurry of criticism. Dean says the pardons “would create a safe harbor” for the people involved and deflate Trump’s plan of engaging in a “retribution and revenge” campaign after he returns to the White House.

Others believe pardons of this sort would be paraded by MAGA as proof the deep state conspired against Donald Trump, hence the need for pardons. In addition to a practical issue about whether pardons without names attached to them would hold up in court, there is also the risk that people within this group would be targeted for congressional investigations and civil suits. Lacking the protection of the Fifth Amendment once the threat of prosecution is off the table, they would be required to show up to testify pursuant to endless and expensive subpoenas. In other words, no good deed goes unpunished.

There are strong arguments on both sides of the issue, and if these pardons become a reality, people involved will have to make very personal decisions about whether to accept the protection of a pardon or not, should Trump’s FBI begin investigating his perceived enemies.

The key point that surfaces for me in this debate is this: pardons are an imperfect solution to a problem that should never exist in a democracy, the threat that a president will corrupt the criminal justice system, turning it into a political tool for punishing his enemies. That’s why this is a hot issue. It’s because of the legitimate fear—Trump has talked about doing it, as have some of his nominees—that the incoming president will hijack the criminal justice system and use it for revenge. That’s where our attention should be directed. Yes, there is a legal conversation about whether pardons would do more harm or more good in this situation. But that conversation is only happening because of an unprecedented threat to our democracy. NPR reported that before the election, Trump “made more than 100 threats to prosecute or punish perceived enemies.”

Federal prosecutors may only indict a case when they believe a federal crime has been committed and that there is sufficient evidence to obtain a conviction at trial and sustain it on appeal. Charging is prohibited if no crime has been committed. If prosecutors tried to do that, a grand jury would likely reject the indictment, or an early motion to dismiss in court would be granted. But even where a criminal prosecution isn’t possible, an investigation could be conducted, particularly if the people at the top of relevant agencies like the Justice Department and the FBI were on board for using the resources of the Justice Department for harassment value. Using the criminal justice system for political revenge is the strategy of authoritarian strongmen, desperate to take out vocal opposition so they can get on with it. It is a strategy used to teach others who might oppose the strongman a lesson in advance.

So let’s keep the focus on Trump and the threat he poses to democracy, even as this debate continues. That is where it belongs.

The Senate has a key role to play here since the Constitution charges them with determining whether the President’s appointees to key positions are fit to serve. Although it’s Democratic senators who are more likely to ask questions about whether nominees for the attorney general or FBI director jobs think it’s appropriate to put people on blacklists and harass and investigate them, Republican senators would do well to pay attention to the answers. They could well find themselves on the wrong side of a relationship with Trump down the road. Just like former attornies general Jeff Sessions and Bill Barr. Trump has even said that retired U.S. Army General Mark Milley, the former chairman of the Joint Chiefs of Staff, should be tried for treason.

Trump’s nominee to lead the FBI, Kash Patel, has his own list, which reportedly includes Trump Administration figures like Cassidy Hutchinson, the former Mark Meadows aide who testified before the January 6 committee, and former spokesperson Alyssa Farah Griffin. Given how Trump ran through spokespeople and chiefs of staff while in office, anyone who accepts a job in the administration should be worried that they, too, could end up on the wrong side of the boss or his minions. The Senate could draw a line in the sand now, keeping people who support revenge prosecutions out of key positions, but that would require Republicans to continue to stand up to Trump like they did when they rejected his first pick to be attorney general, Matt Gaetz.

At the end of the day, I don’t think the preemptive pardons will end the concerns. Even if President Biden pardons some people, there are plenty of others to prosecute. And prosecutions can be extended to family members, à la Hunter Biden. There are ways to make life difficult for people beyond criminal prosecutions when you control the levers of power in two branches of government and have a willing Supreme Court in the third. Some people are excruciatingly vulnerable, and giving them pardons, if they want them, could be a good idea. But it won’t make the entirety of the problem go away. Keep the responsibility for that where it belongs—on Trump.

We’re in this together,

Joyce