Biden should hope Trump pardons himself
As the days count down to Jan. 20, President Donald Trump, who has rarely seen a norm he couldn’t break, may be tempted to break just one more— and pardon himself before he leaves office in case he is later prosecuted for federal crimes. If he does, many Americans will react with outrage.
But a self-pardon by Trump, odious as it might seem, could also be a backhanded gift to President-elect Joe Biden, by instantly removing pressure on the new administration to mire itself in a divisive legal pursuit of the former president.
Biden faces a genuine dilemma. A bedrock principle of American democracy is that no man is above the law, not even a president. But if Bidenwere tomove quickly to prosecute the man he just beat in an election— a man who shows every sign of planning to run again— the resultwould be a partisan brawl thatwould end Biden’s hopes of restoring ameasure of bipartisanship toWashington.
But federal prosecutors inNew York and elsewhere have long been looking into allegations of illegal contributions to Trump’s 2017 inauguration and other financial irregularities. Former aides to special counsel Robert Mueller have said the presidentwas guilty of obstructing justice by interfering with their investigation.
“I believe that (federal prosecutors) have no choice,” Vice President-elect KamalaHarris said in 2019. “The president is not above the law.”
Still, for a Biden Justice Department, prosecuting Trumpwould come
with plenty of problems.
Fairly or not, itwould look like “victor’s justice.” Democrats condemned Trumpfor encouraging followers to chant “Lock her up” about Hillary Clinton; itwould be hard to justify “Lock him up” as a substitute, however much moreTrump might deserve it.
Investigating Trumpwould continue the vicious cycle under which the Trump administration investigated former President Barack Obama and his aides for purportedly spying on Trump’s 2016 campaign (charges that have never been substantiated).
If the Biden administration subjected Trump to prosecution, Republicans in Congresswould race to defend him, if only to maintain the support of loyal Trump voters.
And itwould be a divisive, all-consuming spectacle thatwould get in Biden’sway as he sought to pass legislation and implement his agenda.
“The arguments on both sides are extraordinarily powerful— and not reconcilable,” Donald B. Ayer, a former top Justice Department official under President George H.W. Bush, told me. “Can Biden make progress on his agenda if the whole country is focused on the prosecution of Donald Trump?”
Biden has carefully avoided making a choice.
“I don’t think anyone’s above the law,” he told reporters in August.
On the other hand, he said, it is “probably not very … good for democracy to be talking about prosecuting former presidents.”
So, he said, hewould leave the decision up to the Justice Department. “In terms of saying, ‘I think the president violated the law— prosecute him,’ I will not do that,” he said. “Thatwould be up to the attorney general to decide whether he or shewanted to proceed.”
A pre-pardoned Trump might help Biden navigate the dilemma by making it difficult to proceed with a prosecution.
While it’s unclear that a self-pardon would be valid— it has never happened before, and it collides with the bedrock principle that no man can serve as judge in his own case— the movewould guarantee that things would be messy. The first step for any prosecutorwould be overcoming the former president’s contention that he is invulnerable to federal prosecution.
And that issue, saysNorman Eisen, a former counsel toHouse Democrats in Trump’s impeachment who is now a fellowat the Brookings Institution, “would end up in the Supreme Court pretty quickly.”
Thatwould be the Supreme Court in which Trump just installed a 6-3 conservative majority.
Eisen’s advice: “Let the states go first. Their investigations are already underway.” And a federal pardon doesn’t cover prosecution by state or local prosecutors.
Biden might be able to avoid the divisive decision about prosecution entirely by letting, say, New York go first. In any case, Trump appears to be in greater danger there than from federal prosecutors.
TheManhattan district attorney is investigating his family real estate firm, the Trump Organization, on allegations of bank and insurance fraud. And the state’s attorney general is investigating whether he claimed improperly inflated deductions on state tax returns.
Trump faces potential civil legal problems aswell. He owes millions of dollars to banks that have held back fromsuing him while hewas in the WhiteHouse.
The cost of his still unsettled federal tax audit could exceed $100 million. Tax cases are pursued, at least initially, in civil courts, not criminal cases; a pardonwon’t relieve him of his obligations to the Internal Revenue Service.
Congressional committees will remain free to investigate him aswell.
In short, Trump’s retirement is unlikely to be overly comfortable even if he doesn’t face a federal indictment.
So go ahead, Mr. President, and pardon yourself. Secure your place in history as one of only two presidents who felt they needed pardons because of the potential criminal charges they faced. Sooner or later, we’ll probably see you in court all the same.